SPEAKERS CONTENTS INSERTS Tables
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72–302 PS
2001
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2001
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
ON
H.R. 169
MAY 9, 2001
Serial No. 27
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250
Mail: Stop SSOP, Washington, DC 20402–0001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
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RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
JOHN CONYERS, JR., MICHIGAN
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
TODD R. SCHULTZ, Chief of Staff
PHILIP G. KIKO, General Counsel
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
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C O N T E N T S
MAY 9, 2001
OPENING STATEMENT
The Honorable F. James Sensenbrenner, Jr., a Representative in Congress From the State of Wisconsin, and Chairman, Committee on the Judiciary
WITNESSES
The Honorable Kweisi Mfume, President and CEO, National Association For the Advancement of Colored People
Oral Testimony
Prepared Statement
Mr. J. Christopher Mihm, Director, Strategic Issues, U.S. General Accounting Office
Oral Testimony
Prepared Statement
Mr. Bobby L. Harnage, Sr., National President, American Federation of Government Employees
Oral Testimony
Prepared Statement
Dr. Marsha Coleman-Adebayo, Private Citizen
Oral Testimony
Prepared Statement
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APPENDIX
Statements Submitted For The Record
The Honorable John Conyers, Jr., A Representative in Congress From the State of Michigan: Prepared Statement
The Honorable Sheila Jackson Lee, A Representative in Congress From the State of Texas
Dr. John E. Berthoud, President, National Taxpayers union: Prepared Statement
Mr. Thomas Devine, Legal Director, Government Accountabilty Project: Prepared Statement
Mr. Matthew Fogg, Chief Deputy U.S. Marshal, Executive Director, Redstone Area Minority Employee Association; Executive Director of Congress Against Racism & Corruption In Law Enforcement: Prepared Statement
M. Kris J. Kolesnik, Executive Director, National Whistleblower Center: Prepared Statement
Dr. David L. Lewis, Research Microbiologist: Prepared Statement
Mr. Gerald R. Reed, President, Blacks in Government and Mr. Rawle O. King, National Legislative Director, Blacks in Government: Prepared Statement
Mr. Steven M. Spiegel, Private Citizen
Materials Submitted For The Record
Bobby L. Harange, American Federation of Government Employees: Response to Questions
Mr. Christopher J. Mihm, General Accounting Office: Response to Questions
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U.S. Department of Agriculture Racial Epithets, Submitted by NAACP
Indian Health Service Rockville, Maryland, Hate Crime Symbols in Workplace, Submitted by the NAACP
U.S. Army Corps of Engineers, New England District Office, Concord, MA Hanging Noose—''Staff Attitude Adjustment Notice'', Submitted by NAACP
Additional Material For the Record
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2001
Wednesday, May 9, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 10:04 a.m., in Room 2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman SENSENBRENNER. The Committee will be in order. The Chair asks unanimous consent for him to declare a recess at any time during the hearing today and I understand that a journal vote is scheduled right after 10:00. So we are going to get going very quickly.
The Federal Government is supposed to enforce the laws that protect employees from discrimination and retaliation. But it sadly appears that the Federal Government at times has failed to meet this standard. According to the GAO, discrimination complaints by Federal employees grew tremendously in the 1990's. In fact, in fiscal year 1999, the number of complaints to the EEOC was about 120 percent greater than the number of complaints in 1991. The GAO reported that complaints alleging retaliation against employees who had participated in the complaint process had increased as well.
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That very type of retaliation is what brings us here today. A number of brave EPA employees and scientists came forward to tell the Science Committee, which I chaired at the last Congress, about a culture of intolerance and hostility at the EPA. By assisting a congressional investigation, those employees risked retaliation and some experienced it. In fact, the Labor Department concluded that the EPA had retaliated against a female scientist because the Science Committee used a memorandum she wrote over 10 years prior to one of the hearings on the issue.
She did not even know the Committee had obtained her memorandum but was still punished by the agency. I will note that according to The Washington Post, the new Administrator of EPA, Christine Todd Whitman, is taking steps to rectify problems at that agency. That is good news, but from what we learned from the oversight investigation, a change in the current law is needed to ensure that all agencies are held accountable for discrimination and retaliation against Federal employees.
In the response from what we learned from the oversight investigation, I, along with Representative Jackson Lee, introduced H.R. 169, the ''Notification and Federal Employee Antidiscrimination and Retaliation Act of 2001.'' The No FEAR Act would require agencies to pay for the settlements or judgment against them and whistleblower and discrimination cases instead of allowing them to pay for such judgments out of a government-wide general fund. This will make the agencies more accountable for their actions. The bill would also require notification to employees of their rights under the various whistleblower and discrimination laws.
The notification requirement is intended to prevent discrimination and harassment in the first place by making employees and managers aware of rules. Additionally, the bill would require agencies to report to Congress on the number of cases alleging intolerance, the disposition of those cases and the cost of the judgments to the American taxpayer and the number of employees disciplined for discrimination, harassment or retaliation.
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This information will help to determine if there is a pattern of misconduct and whether an agency is disciplining those employees or managers involved in that behavior. Such tracking of complaints, cases and costs is not required today. H.R. 169 enjoys a broad show of diverse support. The NAACP has endorsed the bill as well as the National Taxpayers Union. Parenthetically, that I will state, that must make it a very good bill or an outrageous rape of the taxpayers. I prefer the former. We have some of the most liberal Members of Congress and some of the most conservative sponsoring this bill.
Just like private sector employees, Federal employees are protected against discrimination and retaliation. Just like the private sector, Federal agencies must be held accountable. With that, I would like to thank the witnesses appearing before this Committee on this important issue, and I look forward to hearing their testimony. Without objection, the opening statement of Mr. Conyers and other Members of the Committee will be inserted in the record at this point.
[Statements follow in the Appendix]
Chairman SENSENBRENNER. The witnesses today are our former colleague, the Honorable Kweisi Mfume, president and CEO of the NAACP; Mr. Jay Christopher Mihm, director of Strategic Issues of the United States General Accounting Office; Mr. Bobby L. Harnage, Sr., national president of the American Federation of Government Employees; and Dr. Marsha Coleman-Adebayo, a private citizen and a former EPA employee who won a significant settlement as a result of discrimination practiced against her. Would all of you please stand and raise your right hand and take the oath.
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[Witnesses sworn.]
Chairman SENSENBRENNER. Let the record show that each of the witnesses answered in the affirmative. Without objection, all of witnesses' prepared statements will be included in the record after their testimony.
Chairman SENSENBRENNER. I would like to ask each of witnesses to summarize their testimony in about 5 minutes, and then at the end of the panel, we will open it up for questioning for Members of the Committee, and here comes the Journal vote, so the Committee will be recessed pending the Journal vote, and I would ask Members following the Journal vote to come back promptly so that we can continue. The Committee stands in recess.
[Recess.]
Chairman SENSENBRENNER. The Committee will be in order and the witnesses will please take their seats. And Mr. Mfume, you are first up, and would the witnesses please summarize their statements in about 5 minutes so we will have more time for questions.
STATEMENT OF THE HONORABLE KWEISI MFUME, PRESIDENT AND CEO, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
Mr. MFUME. Thank you, Mr. Chairman. I will work very hard to do that. I want to first begin by thanking you and Ranking Member Conyers,—who I understand will be joining us shortly—for your support on this issue and for really taking the lead. I appreciate you holding this hearing as well as all of your efforts to shed light on this very important issue. As my testimony will reflect the NAACP is especially appreciative of your efforts and the efforts of Congresswoman Sheila Jackson Lee to address this problem of Federal employee discrimination, both through legislation and through hearings such as this. As a former Member of this body, it is an honor always to sit before this distinguished Committee.
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I want to particularly applaud, as you referenced earlier, Mr. Chair, the bipartisan efforts to discuss and to find solutions to this persistent problem of racism, sexism and anti-Semitism that, in the aggregate, continue to plague this Nation and have done so far too long. You, Mr. Conyers, and others, and particularly those on this Committee, are to be commended.
Unfortunately Mr. Chairman, I am here because Federal employees today are still subjected to racial, religious, and gender discrimination with little or no recourse. We believe, obviously, that this is a moral disgrace. Discrimination anywhere in the United States is reprehensible and should not be tolerated. It is especially, however, disconcerting when it takes place in the Federal Government. Fair employment, equal employment opportunities should be basic cornerstones of the government.
Discrimination and retaliation against people who complain about it and their supporters is rampant in Federal departments, and quite frankly, in agencies across the Nation. And perhaps more problematic is the fact that even complaining about racially discriminatory behavior on the job or even supporting someone who complains about it is often tantamount to a death sentence for a person's career within our own government. And so the individual who speaks out is often faced with harassment, and in some instances, even personal danger.
In February 1998, subsequent to a summit that we held at the NAACP, we established a Federal sector task force with representatives of four States and the District of Columbia. And the primary purpose of task force was to investigate and to address these ever-growing complaints about discrimination within our government. Much of the testimony that I present today comes formally from that task force led by our national board member, Leroy Warren, who is here along with several members of that task force itself. Since its inception, the task force has received and continues to receive hundreds of complaints each year, many of these complaints are from ethnic minority Federal employees, who also have heard, as we have, of this ongoing trend toward these discriminatory issues. Interestingly enough, we have also heard from white men and white women who have apparently been punished by their superior for upholding existing antidiscrimination law and existing regulations.
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In recent months, the task force has also begun hearing from an even broader prospective and spectrum of people, specifically Jewish men and Jewish women who have also been subjected to discrimination and harassment based on their religious beliefs.
So the common thread among all of the complaints that the NAACP has received as well as those in our own subsequent investigations is a nationwide pattern of discrimination that heretofore has not been adequately addressed and certainly not eliminated.
A 1999 survey conducted at the Bureau of Printing and Engraving, a satellite facility, to be exact, in Fort Worth, Texas, 92 percent of the people surveyed said they had been personally subjected to some form of discrimination on the job because of their race, their color, their national origin, their age, their handicap, their marital status and even their political affiliation. This means, at best, we're able to determine that not only is race based and other types of discrimination pervasive throughout this facility and oftentimes throughout our government, but that it is also common knowledge. Unfortunately this facility is typical of many of the others that we have surveyed, including departments right here in Washington, D.C., and I'll quickly try to give the Committee a couple of examples.
Number one, an employee at the national headquarters of the Federal Aviation Administration complained to her supervisor and other high ranking officials about displays of the confederate flag and references to slavery at the FAA that many people there found offensive. Subsequent to her complaining, her car was vandalized while parked on the FAA lot, and to add insult to injury, no disciplinary action was ever taken against the people who initiated what amounted to be racially offensive actions in the first place.
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At the U.S. Department of Agriculture headquarters here in Washington, someone defined the NAACP as the ''Now Apes are Called People'' organization. They put that on the wall. A copy of the racial epitaph is forwarded to the president of the Coalition of Minority Employees at USDA and sent directly to his church for his receipt. No one was ever investigated and held responsible for either action.
And so as indicated earlier, while the problems of racial discrimination and intimidation exist here in Washington, they can be found throughout facilities across our Nation.
Another example is a hanging noose sign that is referenced on the charts to my right stating ''staff attitude adjustment notice'' that was found in a black employee's work place at the U.S. Corps of Army Engineers in Concord, Massachusetts. In addition to this overt intimidation, Latino, Asian and black Federal employees have consistently found that they have been discriminated against, and oftentimes routinely, as a result of that, miss out on promotions because of their race or their ethnicity.
In Washington, employees at the Library of Congress successfully filed a class action lawsuit alleging, among other things, racial discrimination, and yet despite repeated findings which the court, in favor of those employees, the Library continues to have even its own set of problems.
In my testimony is referenced the case of Dr. William Ellis, which illustrates, we believe, the Library's ongoing failure to validate its competitive selection procedures and the illegal use of reassignments and details, which confers professional treatment among some who were usually whites, and then effectively grooms them for higher positions while passing over others for reasons that we still don't really understand.
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Dr. Ellis is an African American senior specialist at the Congressional Research Service. He's been denied a promotion despite some 30 years of work experience and an exemplary work record.
And so, Mr. Chairman, suffice it to say that a careful examination of the record will show that race and gender-based discrimination and intimidation still run rampant in the Federal employment sector, and real and comprehensive policies as well as vigorous enforcement of those policies is needed if that discrimination is ever going to be stopped.
Let me just, if I might, in supporting this bill and supporting your efforts, take a moment to point out how a few of the potential repercussions, and quite frankly real dangers that are inherent in this sort of discrimination can come back to hurt us and to clearly hurt our government.
First, by allowing the status quo to continue within the Federal Government, we are placing the safety and the service of dedicated workers as well as taxpaying citizens at risk. Agencies know that they cannot, or should not, discriminate. And yet in many instances, we have seen this still taking place. This includes such agencies as the USDA, the Department of Defense and the U.S. Marshall Service, all of which are charged with protecting various aspects of our citizenry. Recently, each one of these agencies has also been found guilty by our Nation's courts of maintaining unbearable working conditions fostered by atmospheres of racial disharmony and mistrust.
I share the feelings of outrage, as I am sure many Members of this Committee do, who realize that our tax dollars are being utilized in too many cases to support institutionalized race and gender discrimination within the Federal ranks. It was shocking to me, and I am sure it will be shocking to many Members of this Committee and the full House, to discover the amount of time, the amount of money and the amount of resources that are expended simply defending the Federal Government against such actions.
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Chairman SENSENBRENNER. Mr. Mfume you are about 3 1/2 minutes over your time. Do you think we could wrap it up so we can get to the others?
Mr. MFUME. I certainly will. You are very generous, Mr. Chairman, and I will be use the term ''liberal,'' and say that you are very liberal with your time. Let me just say this, and refer obviously all of you to the full set of testimony. We believe that H.R. 169 is a step in the right direction. It is a good first step, a good way to proceed.
Again, the Chair and Ms. Jackson Lee and others who have supported this are to be commended. I really want to thank the distinguished Members of this Committee for having a chance to bring these issues forward, as I am sure the others who give testimony will also thank you.
At the end of the day we believe that the bottom line is to ensure that discrimination of all types within the Federal Government must be eradicated, and that America's Federal employees who are black and white and Jewish and Latino and Asian are treated equally and treated fairly in the workplace.
Thank you, Mr. Chairman and I will yield back time that I do not have.
Chairman SENSENBRENNER. Thank you, Mr. Mfume and this is the first time in a long time that anybody has called me liberal.
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[The prepared statement of Kweisi Mfume follows:]
PREPARED STATEMENT OF KWEISI MFUME
Thank you, Chairman Sensenbrenner and Ranking Member Conyers, for inviting me here today to talk about the important issue of employment discrimination within the federal government. I appreciate your holding this hearing as well as all of your hard work to address this issue.
As my testimony will reflect, the NAACP is especially appreciative of the efforts that you, Chairman Sensenbrenner, as well as Congresswoman Sheila Jackson Lee have undertaken to address this problem both through legislation as well as through hearings such as this one that help shed light on the problem.
It is also an honor, as always, to sit before Congressman John Conyers to talk about how to address the persistent problem of racism that has plagued this nation for too long. Congressman Conyers has worked tirelessly with the NAACP on racial discrimination issues and we look forward to many more years of your leadership in this area.
Unfortunately, federal employees today are often subjected to racial and gender discrimination with little or no recourse.
This is morally disgraceful, as discrimination anywhere in the United States is reprehensible and should not be tolerated. It is, however, especially disconcerting as the federal government should serve as a model of best practices for fair employment and equal opportunity to national and international companies.
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Discrimination, and retaliation against people who complain about it and their supporters, is rampant in federal departments and agencies across the nation.
Perhaps more problematic is the fact that complaining about racially discriminatory behavior on the job, or even supporting someone who complains, is often tantamount to a death sentence for a person's career within the federal government and the individual is often faced with harassment and in some cases personal danger.
In response to the rapidly expanding number of complaints of discrimination by federal employees the NAACP, in January, 1998, held a Federal Sector Employment Discrimination Summit at the University of Maryland at College Park. Subsequent to the summit, in February, 1998, the NAACP established our Federal Sector Task Force with representatives from four states and the District of Columbia to investigate and address the ever-growing number of complaints of discrimination within the federal government. Much of the testimony that I have for you today comes from the Task Force, which is led by NAACP National Board Member, Mr. Leroy Warren.
Since its inception, the Task Force has received and continues to receive hundreds of complaints each year. While many of these complaints are from ethnic minority federal employees, we have also heard from Caucasian males and females, who have been apparently punished by their superiors for essentially upholding existing anti-discrimination laws and regulations. In recent months, the Task Force has also begun hearing from an even broader spectrum of people, specifically Jewish men and women, who have been subjected to discrimination and harassment because of their religious beliefs.
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Through all of the complaints we have received, as well as our own subsequent investigations, the NAACP continues to see a nation-wide pattern of discrimination that has, heretofore, not been adequately addressed and certainly not eliminated.
In a 1999 survey conducted at the Bureau of Printing and Engraving satellite facility in Fort Worth, Texas, 92% of the people surveyed said they had either been personally subjected to discrimination on the job because of their race, color, religion, national origin, age, handicapped condition, marital status or political affiliation or they knew of a co-worker who had suffered from some form of discrimination. This means that not only is race-based discrimination pervasive throughout this facility, but that it is also common knowledge.
Unfortunately, this facility is typical of many others that the NAACP Task Force has investigated, including departments right here in Washington, D.C.
An employee at the national headquarters of the Federal Aviation Administration complained to her supervisor and other high-ranking officials about the display of confederate flags and references to slavery at the FAA that many found offensive. Subsequent to her complaining, her car was vandalized while parked in the FAA parking lot. To add insult to injury, no disciplinary action was ever taken against the people who initiated the racially offensive actions in the first place. Nor were the people responsible for vandalizing the employee's car ever brought to justice.
At the US Department of Agriculture headquarters here in Washington, somebody defined the NAACP as ''Now Apes Are Called People'' on a wall. A copy of this racial epithet was then forwarded to the President of the USDA Coalition of Minority Employees at his church in Alabama. No one was ever held responsible for either action.
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As I indicated earlier, while the problems of racial discrimination and intimidation exist here in Washington, they can also be found at federal facilities throughout the United States. For instance, a hanging noose and sign stating ''Staff Attitude Adjustment Notice'' was found in an African American's workspace at the US Army Corps of Engineers District Office in Concord, Massachusetts.
In addition to this overt intimidation, federal employees of color have consistently found that they have been discriminated against, and routinely missed out on promotions because of their race. Here in Washington, African American employees at the Library of Congress successfully filed a class action lawsuit alleging, among other things, racial discrimination. Despite repeated findings by the Courts in favor of the employees, the Library continues to have problems.
The case of Dr. William Ellis illustrates the Library's ongoing failure to validate its competitive selection procedures and the illegal use of reassignments and details, which confers professional treatment to Caucasians, and effectively grooms them for higher positions. Dr. Ellis, an African American Senior Specialist at the Congressional Research Service was denied a promotion despite some 30 years of experience. Dr. Ellis has testified that Library officials ''routinely groom Caucasian employees for upper management and give preferred Caucasian employees . . . assignments and positions which confer an unfair advantage when competing for senior positions.''
In addition to the individual stories, another indicator of the extent of this problem may be the number of class action lawsuits that have been filed within the last thirty years and continue to be filed today. Just a few of these actions include: In 1975, African American employees filed a class action lawsuit against the Library of Congress. In a 1992 declaratory judgment, the U.S. District Court concluded that the Library had clearly and systematically discriminated against African Americans because of their race.
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In 1995, an organization known as Black Males for Justice at the Social Security Administration filed a class action complaint of discrimination with the Social Security Administration. In April of 1997, an administrative judge at the Equal Employment Opportunity Commission (EEOC) issued a recommendation that the complaint be accepted as a Class Action Complaint. A month later, the Social Security administration issued a final agency decision rejecting the decision of the EEOC.
In 1995, female employees of the United States Department of Agriculture Forest Service in the Pacific Southwest Region filed a lawsuit on behalf of 6,000 members charging that the region maintains a sexually hostile work environment and has engaged in a pattern and practice of sexual harassment and retaliation against female employees.
Suffice it to say that a careful examination of the record will show that race- and gender-based discrimination and intimidation are still rampant within the federal employment sector, and that real and comprehensive policies, as well as, the vigorous enforcement of these policies are needed if discrimination is going to be stopped.
It may be a cliche, but it appears that it is going to take an Act of Congress to make the federal agencies, departments and other government entities, address the problems that exist within their own ranks.
Before I get into specific details about what needs to be done, I would like to take a minute and point out a few of the potential repercussions and, quite frankly, real dangers that are unique to racial discrimination within the federal government.
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First, by allowing this status quo to continue within the federal government, we are placing the safety and service of both our dedicated workers, as well as our taxpaying citizens at risk. Agencies that cannot or are unwilling to acknowledge discrimination or retaliation within their own ranks cannot be operating productively. This includes agencies such as the USDA, the Department of Defense, and the US Marshall's Service, all of which are charged with protecting various aspects of our population and all of which have fairly recently been found guilty by our nation's courts of maintaining unbearable working conditions fostered by atmospheres of racial disharmony and mistrust.
Secondly, in addition to the feelings of outrage that I, and others have when we realize that our tax dollars are being utilized, in all too many cases, to support institutionalized race and gender discrimination within the federal ranks, it was shocking to me to discover the amount of time, money and other resources that are expended defending the federal government in these legal actions. It has been estimated that the average EEO investigation costs the federal government approximately $3,000. Add to this the cost of waging a legal defense in all of the class action lawsuits, as well as the amount of tax-payers' money spent in both settlements and court rulings against the government, and you find the burden to our federal government is staggering.
So, how is it that racial and gender employment discrimination of this magnitude is able continue almost unchecked in the year 2001? This is particularly perplexing given the economic costs, the threats to public safety, as well as the gross disregard for the public trust. The over-riding answer appears to be a lack of incentive in some cases and ability in others on the part of managers and those responsible for overseeing the action of federal employees to stop the problem.
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Specifically, there are currently no sanctions or other deterrents in place to punish federal departments or agencies that engage in or allow discrimination to fester within their ranks. Persons and Departments found guilty of discriminatory actions pay virtually nothing; a majority of the money spent on settlements or judgments comes from the Federal Treasury Judgment Fund.
Furthermore, the EEOC lacks adequate funding as well as federal authority to intervene rapidly, even in the most blatant discrimination cases. In addition to looking at how we can make individuals, departments and agencies more accountable, I hope that Congress will take the time to look at how we can strengthen and enhance the EEOC authority and scope.
In my discussions with the NAACP Task Force members, as well as other members of the civil rights community, there seems to be an overriding consensus that the EEOC needs more staff and more resources if it is going to adequately meet the challenges that it has been presented with in the last decade. Even a casual examination of the amount of funding provided to the EEOC over the last few years by Congress and the Administrations makes us wonder how the EEOC has been able to achieve all that it has, as well as marvel at what could be if it had adequate funding and authority.
The bill introduced by Chairman Sensenbrenner and Congresswoman Jackson Lee, H.R. 169, is a positive step in enhancing our approach to eliminating discrimination within the federal sector. By requiring that federal agencies be held accountable for violations of anti-discrimination and whistleblower protection laws, H.R. 169 renews efforts to address a problem that has been allowed to fester far too long. Furthermore, by requiring that federal agencies notify their employees of their rights under discrimination and whistleblower statutes, H.R. 169 would require the federal government to send an important message to all it employees that we are serious about ensuring that people's rights are protected.
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The portion of H.R. 169 that requires that federal agencies report to Congress each year on the number of discrimination complaints lodged against it, as well as the disposition of such cases would also let employees know that their rights are being monitored, and that Congress is watching out for them.
Finally, the language in H.R. 169 requiring that federal agencies pay out of their own budgets any discrimination or whistleblower judgments, awards or settlements against the agency, would clearly help make agency administrators as well as Department Secretaries more aware of what is happening and more interested in taking steps to prevent these discriminatory practices.
In short, I commend Chairman Sensenbrenner, Congresswoman Sheila Jackson Lee and this committee for taking on this crucial problem, and introducing this important legislation. If nothing else, it advances the need to put the federal government on alert that racial and gender discrimination is being noticed and will not be tolerated.
Thank you for the opportunity to bring these issues before the Committee and I look forward to working with you to make certain that all of America's federal employees are able to work in an environment which is free of discrimination and intimidation.
Chairman SENSENBRENNER. Mr. Mihm.
STATEMENT OF J. CHRISTOPHER MIHM, DIRECTOR, STRATEGIC ISSUES, UNITED STATES GENERAL ACCOUNTING OFFICE
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Mr. MIHM. Thank you, Mr. Chairman. It is a pleasure and an honor to be here this morning to provide information for your deliberations on the No FEAR Act. Over the years, Congress has put in place a statutory framework to help ensure that Federal employees are able to achieve results in an environment free from discrimination and the fear or experience of retaliation or reprisal for blowing the whistle on waste, fraud and abuse.
Unfortunately, and as Mr. Mfume detailed, despite these protections, some Federal employees have experienced or believe that they have been subject to workplace discrimination or reprisal for whistleblowing. Such experiences or perceptions, and the complaints and lawsuits that they spur not only disrupt the lives of the affected employees, they also undermine the efficient and effective delivery of government services to the public and discourage our goals of a diverse, pluralistic and accountable workforce. With these thoughts in mind, I will hit the highlights of the three points detailed in my written statement concerning the need for first, better reporting; second, accountability; and third, notification. As you know, the No FEAR Act seeks to address each of these issues. First in regards to reporting, as you mentioned in your opening statement, Mr. Chairman, because data are not currently available, there is no clear picture on the number of complaints of workplace discrimination and reprisal for whistleblowing at agencies or government-wide or the outcome of those cases.
In addition, although initiatives are under way to deal with data shortcomings, key information is still lacking on the relationship between the statutory basis of complaints, for example, race, sex or disability, and the kind of issues such as nonselection for promotion or harassment that were cited in the complaints.
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The point here is that such data are important because they can be a starting point for Congress, agency managers, and the public to better understand the nature and scope of issues in the workplace involving discrimination, reprisal, conflict and other problems and can help in developing strategies for dealing with these issues.
In short, if we don't know the scope of the problem and the nature of the problem, we can't begin to start addressing it.
Second, in regards to accountability, agencies and their leaders and managers must be accountable for providing a fair and equitable workplace free from discrimination and reprisal. Data along the lines that I just mentioned is helpful in that it fosters transparency, which in turn provides an incentive for agency leadership to improve performance and enhance the imagine of the agency in the eyes of both its employees and the public.
The No FEAR Act includes another possible means for promoting accountability by having agencies, as you mentioned, Mr. Chairman, in your opening statement, more fully bear the cost of payments of complainants and their lawyers made in resolving cases of discrimination and reprisal. However, just as it is important for agencies to be held accountable, so must individuals be held accountable for their misconduct. In that regard, published statistical data as envisioned by the Act can be important for agencies to send clear, unmistakable messages to their employees that individuals will be held accountable for their actions in cases involving discrimination, retaliation or harassment.
My third point this morning concerns notification. In order for the full benefit of the laws protecting the workforce to be realized, agencies need to take steps to make Federal employees sufficiently aware of their protections, from discrimination and reprisal. There has been wide spread concern that Federal employees were not sufficiently aware of their protections, particularly about protections in regards to reprisal for whistle blowing. And without this knowledge of their protections they may not come forward for fear of reprisal. We pointed out this lack of awareness—we first pointed this out back in 1992 and available data suggests it is still a problem today.
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In summary, Mr. Chairman, to help ensure economical, efficient, effective delivery of services for the benefito f the American people, allegations of discrimination and reprisal in the Federal workforce must be dealt with in a fair, equitable, and timely manner. Doing so requires first reliable and complete reporting of data as a starting point to understand the nature and scope of issues in the workplace involving discrimination.
Second, agencies and individuals must be held accountable for their actions; and third, the workforce must be aware of laws protecting them from discrimination and reprisal not only to deter this type of conduct, but also so that employees will know what type of action to take when this misconduct has occurred.
Mr. Chairman, Members of the Committee this concludes my statement. I will be pleased to answer any questions that you have.
Chairman SENSENBRENNER. Thank you, Mr. Mihm.
[The prepared statement of J. Christopher Mihm follows:]
PREPARED STATEMENT OF J. CHRISTOPHER MIHM
Mr. Chairman and Members of the Committee:
I am pleased to have this opportunity to provide information for your deliberations on H.R. 169, the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2001, commonly referred to as the No FEAR Act.
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In a high-performing workplace, federal employees must be able to pursue the missions of their organizations free from discrimination and should not fear or experience retaliation or reprisal for reporting—blowing the whistle on—waste, fraud, and abuse. To help achieve such a workplace, federal antidiscrimination laws protect these employees from discrimination based on their race, color, sex, religion, national origin, age, or disability, as well as retaliation for filing a complaint of discrimination.(see footnote 1) In addition, the Civil Service Reform Act of 1978 articulates the merit system principles for the fair and equitable treatment of the federal workforce and defined personnel practices that are prohibited. Among the prohibited personnel practices is reprisal for whistleblowing. Several other laws also protect employees from reprisal by prohibiting agencies' taking or threatening to take—or not to take—a personnel action because of an employee's whistleblowing activities.
Unfortunately, despite these protections, some federal employees have experienced or believe that they have been subject to workplace discrimination or reprisal for whistleblowing. Such experiences or perceptions—and the complaints and lawsuits they spur—not only disrupt the lives of the affected employees, they can also undermine the efficient and effective delivery of government services to the public and discourage a diverse, pluralistic, and accountable workforce.
With these thoughts in mind, I have three points to make that relate to the principles underlying the proposed act.
Reporting. Because data are not readily available, there is no clear picture of the number of complaints of workplace discrimination and reprisal for whistleblowing at agencies or governmentwide and the outcome of these cases. Data of this nature are important because they can be a starting point for agency managers to understand the nature and scope of issues in the workplace involving discrimination, reprisal, and other conflicts and problems, and can help in developing strategies for dealing with those issues.
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Accountability. Accountability is a cornerstone of results-oriented management. Agencies and their leaders and managers should be accountable for providing fair and equitable workplaces, free from discrimination and reprisal. In addition, individuals need to be held accountable for their actions in cases where discrimination or reprisal for whistleblowing has occurred.
Notification. Finally, in order for the full benefit of laws protecting the workforce to be realized, agencies need to take steps to make federal employees sufficiently aware of their protections from discrimination and reprisal for whistleblowing.
In making our observations today, and as agreed with the Committee, I will draw upon our work examining discrimination and whistleblower issues in the federal workplace and performance management principles embodied in the Government Performance and Results Act, particularly in regard to human capital.
REPORTING: NO CLEAR PICTURE OF COMPLAINT ACTIVITY
The federal government lacks a clear picture of the volume of discrimination and whistleblowing reprisal cases involving federal employees. The lack of a complete accounting of cases is in part a by-product of the complexity of the redress system for federal employees and the different ways in which case data are reported. The No FEAR Act would require agencies to report the number of discrimination and whistleblower reprisal cases.
Executive branch civil servants are afforded opportunities for redress of complaints of discrimination or retaliation for whistleblowing at three levels: first, within their employing agencies; next, at one of the administrative bodies with sometimes overlapping jurisdictions that investigate or adjudicate their complaints; and, finally, in the federal courts.(see footnote 2)
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Where discrimination is alleged, the Equal Employment Opportunity Commission (EEOC) hears complaints employees file with their agencies and reviews agencies' decisions on these complaints.(see footnote 3) In a case in which an employee alleges that discrimination was the motive for serious personnel actions, such as dismissal or suspension for more than 14 days, the employee can request a hearing before the Merit Systems Protection Board (MSPB). MSPB's decisions on such cases can then be reviewed by EEOC.
For federal employees who believe that they have been subject to whistleblower reprisal, the Office of Special Counsel (OSC) will investigate their complaints and seek corrective action when a complaint is valid. When agencies fail to take corrective action, OSC or the employee can take the case to MSPB for resolution. Alternatively, an employee can file a whistleblower reprisal complaint directly with MSPB, if the personnel action taken against the person is itself appealable to MSPB. In addition, under certain environmental laws and the Energy Reorganization Act, employees can ask the Department of Labor (DOL) and the Nuclear Regulatory Commission to investigate their complaints.
Employees who belong to collective bargaining units represented by unions can also file grievances over discrimination and reprisal allegations under the terms of collective bargaining agreements. In those situations, the employee must choose to seek relief either under the statutory procedure discussed above or under the negotiated grievance procedure, but not both. If an employee files a grievance alleging discrimination under the negotiated grievance procedure, the Federal Labor Relations Authority (FLRA) can review any resulting arbitrator's decision. A grievant may appeal the final decision of the agency, the arbitrator, or FLRA to EEOC.
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A complainant dissatisfied with the outcome of his or her whistleblower reprisal case can file an appeal to have the case reviewed by a federal appeals court.(see footnote 4) An employee with a discrimination complaint who is dissatisfied with a decision by MSPB or EEOC, however, can file a lawsuit in a federal district court and seek a de novo trial.(see footnote 5)
With reporting requirements and procedures varying among the administrative agencies and the courts, data on the number of discrimination and whistleblower reprisal cases are not readily available to form a clear and reliable picture of overall case activity. However, available data do provide some insights about caseloads and trends. These data and our prior work show that most discrimination and whistleblower reprisal cases involving federal employees are handled under EEOC, MSPB, and OSC processes, with complaints filed under EEOC's process by far accounting for the largest volume of cases. In fiscal year 2000, federal employees filed 24,524 discrimination complaints against their agencies under EEOC's process. In fiscal year 2000, MSPB received 991 appeals of personnel actions that alleged discrimination. MSPB also received 414 appeals alleging whistleblower reprisal in fiscal year 2000, while OSC received 773 complaints of whistleblower reprisal. There are two caveats I need to offer about these statistics. The first is that because of jurisdictional overlap among the three agencies, the statistics cannot be added together to give a total number of discrimination and whistleblower reprisal complaints. The second caveat is that in our past work, we found some problems with the reliability and accuracy of data reported by EEOC.(see footnote 6)
Notwithstanding these caveats, the available data also show that the last decade saw an overall increase in the number of cases, particularly discrimination complaints under EEOC's jurisdiction.(see footnote 7) The number of cases under EEOC's jurisdiction, which stood at 17,696 in fiscal year 1991, showed a fairly steady upward trend, peaking at 28,947 in fiscal year 1997. Although the number of new cases each year has declined since fiscal year 1997, the number of cases in fiscal year 2000—24,524—is almost 40 percent greater than in fiscal year 1991, despite a smaller federal workforce.
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Caseload data can be a starting point for agency managers to understand the nature and scope of issues in the workplace involving discrimination, reprisal, and other conflicts and problems, and can help in developing strategies for dealing with these issues. However, caseload data can only be a starting point because they obviously do not capture any discrimination or reprisal that is not reported.
As I discussed above, most discrimination complaints are handled within the process under EEOC's jurisdiction. However, we have found in our past work that EEOC does not collect data in a way needed by decisionmakers and program managers to discern trends in workplace issues represented by discrimination complaints, understand the issues underlying these complaints, and plan corrective actions.(see footnote 8) Although EEOC has initiatives under way to deal with data shortcomings, relevant information is still lacking on such matters as (1) the statutory basis (e.g., race, sex, or disability discrimination) under which employees filed complaints and (2) the kinds of issues, such as nonselection for promotion or harassment, that were cited in the complaints.(see footnote 9)
The No FEAR Act would also require agencies to report the status or disposition of discrimination and whistleblower reprisal cases. The available data show that most allegations of discrimination and reprisal for whistleblowing are dismissed, withdrawn by the complainant, or closed without a finding of discrimination. However, many other cases are settled. Of the discrimination cases within EEOC's jurisdiction, 5,794 (21.3 percent) of the 27,176 cases were closed through a settlement. At MSPB, 279 (28.5 percent) of the 980 appeals that alleged discrimination were settled. With regard to the 440 whistleblower cases at MSPB, 93 (21 percent) were settled. While settlements are made when evidence may point to discrimination or reprisal, at other times an agency may make a business decision and settle for a variety of reasons, including that pursuing a case may be too costly, even if the agency believes it would have ultimately prevailed. Finally, in some cases, discrimination or reprisal is found. Of the 27,176 cases within the discrimination complaint process under EEOC's jurisdiction that were closed in fiscal year 2000, 325 (about 1 percent) contained a finding of discrimination. At MSPB, of the 980 cases alleging discrimination, discrimination was found in 4 (four-tenths of a percent). In 440 cases alleging whistleblower reprisal it reviewed, MSPB found that a prohibited personnel practice occurred in 2 (five-tenths of a percent) of the cases. At OSC, favorable actions were obtained in 47 of 671 (7 percent) whistleblower reprisal matters closed in fiscal year 2000.(see footnote 10)
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AGENCY MOVEMENT TOWARD ALTERNATIVE DISPUTE RESOLUTION
It is important to note that agencies have responded to the rise in the number of complaints and the costs associated with them by adopting alternative means of dispute resolution (ADR). Using ADR processes, such as mediation, agencies intervene in the early stages of conflicts in an attempt to resolve or settle them before positions harden, workplace relationships deteriorate, and resolution becomes more difficult and costly. A premise behind a requirement EEOC put in place in 1999 that agencies make ADR available was that the complaint system was burdened with many cases that reflected basic workplace communications problems and not necessarily discrimination. Some agencies, most notably the Postal Service, have reported reductions in discrimination complaint caseloads through the use of ADR. In fact the Postal Service, from fiscal year 1997 through fiscal year 2000, saw a 26 percent decline in the number of discrimination complaints that the agency largely attributes to its mediation program.(see footnote 11) Because ADR prevents some disputes from rising to formal complaints, a reduction in the number of formal complaints should not necessarily be looked at as a reduction in workplace conflict, but it can indicate that an agency is more effectively dealing with workplace conflict.
Meaningful data along the lines I discussed earlier are useful in helping to measure an agency's success in adhering to merit system principles, treating its people in a fair and equitable way, and achieving a diverse and inclusive workforce. We encourage such assessments of agencies' workplaces and human capital systems to help them align their people policies to support organizational performance goals.(see footnote 12) In addition, data foster transparency, which in turn provides an incentive to improve performance and enhance the image of the agency in the eyes of both its employees and the public.
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Another possible means of promoting accountability might be to have organizations bear more fully the costs of payments to complainants and their lawyers made in resolving cases of discrimination and reprisal for whistleblowing. Currently, federal agencies do not always bear the costs of settlements or judgments in discrimination or reprisal complaints. Agencies will pay these costs when a complaint is resolved by administrative procedures, such as the discrimination complaint process. However, when a lawsuit is filed, any subsequent monetary relief is generally paid by the Judgment Fund. (One exception is the Postal Service, which is responsible for settlement and judgment costs.) The Judgment Fund provides a permanent indefinite appropriation to pay settlements and judgments against the federal government. Congress created the Judgment Fund to avoid the need for a specific congressional appropriation for settlement and judgment costs and to allow for prompter payments. The No FEAR Act would require that agencies reimburse the Judgment Fund for payments made for discrimination and whistleblower reprisal cases.
Table 1 below shows payments made by agencies for discrimination complaint cases processed under administrative procedures within EEOC's jurisdiction and payments from the Judgment Fund for employment discrimination lawsuits (these were the only readily available data). In addition to attorney fees and expenses, payments made to complainants include back pay, compensatory damages, and lump sum payments. As the table shows, agencies made payments totaling about $26 million in fiscal year 2000 for discrimination complaint settlements and judgments. At the same time, agencies were relieved of paying almost $43 million in cases because of the existence of the Judgment Fund.(see footnote 13)
The availability of the Judgment Fund to pay settlement and judgment costs has brought about debate with regard to agency accountability. On one hand, it could be argued that the Judgment Fund provides a safety net to help ensure that agency operations are not disrupted in the event of a large financial settlement or judgment. It can also be argued, however, that the fund discourages accountability by being a disincentive to agencies to resolve matters promptly in the administrative processes; by not pursuing resolution, an agency could shift the cost of resolution from its budget to the Judgment Fund and escape the scrutiny that would accompany a request for a supplemental appropriation.(see footnote 14) Congress dealt with a somewhat similar situation when it enacted the Contract Disputes Act(see footnote 15) in 1978, which requires agencies to either reimburse the Judgment Fund for judgments awarded in contract claims from available appropriations or to obtain an additional appropriation for such purposes. This provision was intended to counter the incentive for an agency to avoid settling and prolong litigation in order to have the final judgment against the agency occur in court. In reconciling these viewpoints on financial accountability, Congress will need to balance accountability with the needs of the public to receive expected services.
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Certainly, just as it is important for agencies to be held accountable in cases where discrimination or reprisal for whistleblowing is found, so must individuals be held accountable for engaging in such misconduct. The No FEAR Act would require agencies to report the number of employees disciplined for discrimination, retaliation, or harassment.(see footnote 16) Published statistical data can be important for agencies to send a message to their employees that individuals will be held accountable for their actions in cases involving discrimination, retaliation, or harassment.
Although we have not done any formal work in this area, we know of two agencies—the Department of Agriculture and the Internal Revenue Service (IRS)—that systematically review outcomes of discrimination cases to determine if any individual should be disciplined. Since January 1998, Agriculture has been reviewing cases in which discrimination was found or in which there were settlement agreements to determine if an employee should be disciplined for discrimination or misconduct related to civil rights. An Agriculture official said that a formal policy on accountability and discipline in civil rights-related cases was currently pending approval. Since July 1998, IRS has been reviewing cases in which discrimination was found or in which there were settlement agreements to determine if the discrimination was intentional. Where an employee has been found to have discriminated against another employee of IRS (or a taxpayer or a taxpayer's representative), the IRS Restructuring and Reform Act of 1998 provides that the individual be terminated for his or her actions. Only the IRS Commissioner has the authority to mitigate termination to a lesser penalty.
I would also add that besides traditional forms of discipline—such as termination, suspension, or letter of reprimand—employees can be held accountable for their behavior through an agency's performance management system. For example, an employee whose behavior does not rise to the level of discrimination but otherwise demonstrates insensitivity or poor communication skills can and should have that fact reflected in his or her performance appraisal.
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The No FEAR Act provides that agencies notify employees of the rights and protections available to them under the antidiscrimination and whistleblower statutes in writing and post this information on their Internet sites. This provision reinforces existing requirements that employees be notified of rights and remedies concerning discrimination and whistleblower protection.(see footnote 17)
There has been a concern that federal employees were not sufficiently aware of their protections, particularly about protections from reprisal for whistleblowing, and without sufficient knowledge of these protections, may not come forward to report misconduct or inefficiencies for fear of reprisal. We first pointed this out in a report issued in 1992.(see footnote 18) Now, almost a decade later, OSC has identified ''widespread ignorance'' in the federal workforce concerning OSC and the laws it enforces, even though agencies are to inform their employees of these protections. According to OSC's fiscal year 2000 Performance Report, responses to an OSC survey indicated that few federal agencies have comprehensive education programs for their employees and mangers.
CONCLUDING OBSERVATIONS
To help ensure economical, efficient, and effective delivery of services for the benefit of the American people, allegations of discrimination and reprisal for whistleblowing in the federal workplace must be dealt with in a fair, equitable, and timely manner. Doing so requires, first, reliable and complete reporting of data as a starting point to understand the nature and scope of issues in the workplace involving discrimination, reprisal, and other conflicts and problems, and to help develop strategies for dealing with these issues. Second, agencies and individuals must be accountable for their actions. Third, the workforce must be aware of laws prohibiting discrimination and whistleblower reprisal to deter this kind of conduct but also so that they know what course of action they can take when misconduct has occurred.
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Mr. Chairman, this concludes my prepared statement. I would be pleased to answer any questions you or other Members of the Committee may have at this time.
Chairman SENSENBRENNER. Mr. Harnage. Could you please turn the mike on. I don't think it's on.
STATEMENT OF BOBBY L HARNAGE, SR., NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Mr. HARNAGE. I represent 600,000 Federal and D.C. Government employees, and I thank you and your Committee for granting me the opportunity to testify today regarding H.R. 169. This bill will require that Federal agencies will be held accountable for violations of employment discrimination and whistleblower protection laws. AFGE has a long history of active involvement in the fight to protect Federal employees from discrimination and against retaliation or whistleblowing actions. AFGE congratulates you for your leadership in offering this legislation to improve agency accountability with respect to whistleblower and discrimination laws.
Mr. Chairman we wholeheartedly support the thrust of this bill, but AFGE is concerned about possible unintended consequences that could end up hurting the Federal employees, whom it is designed to protect. Section three of the bill requires that the amount of any claim, final judgment award or a compromise settlement paid to any current or former Federal employee or applicant in connection with specified antidiscrimination and whistleblower protection proceedings be reimbursed through the government fund established for such payments out of the operating expense of the agency, to which the discrimination or conduct is attributable.
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In order to effectuate its intended purpose, AFGE believes a simple amendment could be added to prohibit such agency reimbursements from being paid out of salaries and expense accounts. Salaries and expense accounts should be broadly defined to include salaries, health and retirement, training, child care subsidies, transportation subsidies, tuition assistance for low income parents, frankly anything that serves to compensate agency employees.
Unless a legislative firewall is designed to prevent antidiscrimination payment out of salaries and expense accounts, agencies may be tempted to use those resources to make the payments this bill would require. If so, this bill, which is designed to penalize the Federal agency, would in fact penalize the Federal employees.
Mr. Chairman, your bill states the case in one terse sentence in subsection 2 of section 2. And I quote it here, ''Federal agencies cannot be run effectively if they practice or tolerate discrimination.'' The practice of discrimination is invidious and pernicious. The toleration of discrimination in the Federal workplace is equally invidious and pernicious and yet more harmful. Continued complacency paves the way for continued evil and has a great cost to our citizens, to our government and to the fabric of our country.
Continued complacency provides no incentive for change. Complacency emboldens those would-be offenders.
Mr. Chairman your bill breaks the mold of complacency which has become settled in too many areas of our government.
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Indeed, your bill brings personal responsibility to the Federal workplace. The theory underlying this proposal is to create a financial disincentive for discrimination in Federal agencies. If agencies have to pay out of their own budget, agencies will ferret out bad behavior and promote zero tolerance policies regarding discrimination and retaliation against legally protected whistleblower actions. For this reason, AFGE supports the reporting requirements of section 5.
Mr. Chairman, discrimination is not an abstract topic. It has human faces on all sides of this. We would like to recommend further steps to help prevent discrimination in the Federal workplace, to further promote personal responsibility for discrimination. AFGE proposes adding a sensitivity section to this bill which would require managers who are disciplined for discrimination, retaliation, harassment or any other infraction covered by this bill to attend and participate in such training.
Payment of the fines is not enough to change behavior. Mr. Chairman, rapid privatization of our Federal Government is occurring. The Federal Government appears to be headed in a direction where its function is no more than handing out contracts to vendors. AFGE firmly believes that antidiscrimination measures in this bill must also be applied to private firms with Federal contracts as well. It is time for this government to stop subsidizing the discriminatory actions of the shadow government and prevent that which cannot be done directly by Federal agencies from being done indirectly by Federal contractors. The full faith and credit of the United States government must be granted to those who are employed by entities doing the work of the United States government with Federal dollars.
Mr. Chairman, I look forward to working with you on this bill. I support the testimony of the three other panel members. AFGE fully supports your goal of zero tolerance of discrimination within our government and I will be available to answer any questions.
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Chairman SENSENBRENNER. Thank you, Mr. Harnage.
[The prepared statement of Bobby L. Harnage, Sr. follows:]
PREPARED STATEMENT OF BOBBY L. HARNAGE, SR.
Mr. Chairman and Members of the Committee:
My name is Bobby L. Harnage, Sr. I am the National President of the American Federation of Government Employees (AFGE), AFL-CIO. AFGE represents over 600,000 federal and District of Columbia government employees.
Mr. Chairman, I thank you and your committee for granting me the opportunity to testify today regarding H.R.169, the ''Notification and Federal Employee Antidiscrimination and Retaliation Act of 2001''. This bill would require that Federal agencies be held accountable for violations of employment discrimination and whistleblower protection laws. AFGE has a long history of active involvement in the fight to protect federal employees from discrimination and against retaliation for whistleblowing actions. AFGE congratulates you for your leadership in offering this legislation to improve agency accountability with respect to whistleblower and discrimination laws.
While we wholeheartedly support the thrust of this bill, AFGE is concerned about possible unintended consequences that could end up hurting the federal employees whom it is designed to protect. Section 3 of the bill requires the amount of any claim, final judgment, award, or compromise settlement paid to any current or former federal employee or applicant in connection with specified antidiscrimination and whistleblower protection proceedings to be reimbursed to the government fund established for such payments out of the operating expenses of the agency to which the discriminatory conduct is attributable.
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In order to effectuate its intended purpose, AFGE believes that your bill should be amended to prohibit such agency reimbursement from being paid out of salaries and expense accounts. Salaries and expense accounts should be broadly defined to include salaries, health and retirement, training, childcare subsidies, transportation subsidies, tuition assistance for low income parents—frankly anything that serves to compensate agency employees.
Unless a legislative firewall is designed to prevent antidiscrimination payment reimbursement out of salaries and expense accounts, agencies may be tempted to use those resources to make the payment this bill will require. If so, this bill which is designed to penalize the federal agency would in fact penalize the federal employees.
Mr. Chairman, your bill states the case in one terse sentence in Section 2(2) and I quote it here. ''Federal Agencies cannot be run effectively if they practice or tolerate discrimination''. The practice of discrimination is invidious and pernicious. The toleration of discrimination in the federal workplace is equally invidious and pernicious and yet more harmful. Continued complacency paves the way for continued evil and has a great cost to our citizens, to our government and to the fabric of our country. Continued complacency provides no incentives for change. Complacency emboldens would be offenders.
Mr. Chairman, your bill breaks the mode of complacency which has become settled in too many areas of our government. Indeed, your bill brings personal responsibility to the federal workplace. The theory underlying his proposal is to create a financial disincentive for discrimination in federal agencies. If agencies have to pay out of their own budgets, agencies will ferret out bad behavior and promote zero tolerance policies regarding discrimination and retaliation against legally protected whistleblower actions. For these reasons, AFGE supports the reporting requirements of Section 5.
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Mr. Chairman, discrimination is not an abstract topic, it has human faces on all sides of this abhorrent dynamic. We would like to recommend further steps to help prevent discrimination in the federal workplace. To further promote personal responsibility for discrimination, AFGE proposes adding a sensitivity training section to this bill, which would require managers who are disciplined for discrimination, retaliation, harassment, or any other infractions covered by this bill to attend and participate. Payment of fines is not enough to change behavior. We believe that education and awareness of what constitutes these infractions are important deterrents as well. AFGE has a long history of advocating that those managers who knowingly and blatantly ignore the laws be held accountable for their actions. The most effective deterrent is to direct penalties at those individuals whose actions gave rise to the claim leading to a judgment.
Mr. Chairman, rampant privatization of our federal government is occurring. The federal government appears to be headed in a direction where its function is no more than handing out contracts to vendors. AFGE firmly believes that the antidiscrimination measures in this bill must also be applied to private firms with federal contracts as well. It is time for this government to stop subsidizing the discriminatory actions of the ''shadow'' government and to prevent what cannot be done directly by federal agencies from being done indirectly by federal contractors. The full faith and credit of the United States government must be granted to those who are employed by entities doing the work of the United States government with federal dollars.
Mr. Chairman, I look forward to working with you on this bill. AFGE fully supports your goal of zero tolerance of discrimination within our government.
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I am available for any questions that you and this committee may have for me.
Chairman SENSENBRENNER. Dr. Coleman-Adebayo.
STATEMENT OF MARSHA COLEMAN-ADEBAYO, PRIVATE CITIZEN
Ms. COLEMAN-ADEBAYO. Mr. Chairman, I testify today as a private citizen and not an EPA employee.
Chairman SENSENBRENNER. Would you please—could you please turn the mike on.
Ms. COLEMAN-ADEBAYO. It is on.
Chairman SENSENBRENNER. Then bring it closer to you, because it is not coming through.
Ms. COLEMAN-ADEBAYO. Mr. Chairman, I testify today as a private citizen and not an EPA employee. I thank you for your compliment and unwaiving support for the civil rights of Federal workers. Because of the No FEAR Act, the first civil rights bill of the 21st century, victims of discrimination whistleblowers who have fought this battle on the front lines will experience relief from retaliation. I thank Congresswoman Sheila Jackson Lee for co-sponsoring this bill and for her personal support of victims of discrimination.
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Congressman John Conyers, as one of your former constituents, I thank you for your long-term commitment to civil rights. I would also like to thank EPA Administrator Christine Todd Whitman for asking the Department of Justice not to pursue an appeal in my case. I would also like to thank the EPA Victims Against Racial Discrimination, the NAACP Federal task force, and other people here who have come to support the victims of discrimination. And most importantly, I thank God for this day.
The legislation before you has widespread support from such groups as the NAACP, the EPA Victims Against Racial Discrimination, the No FEAR Coalition, the National Whistleblower Center, and the Southern Christian Leadership Conference, the organization founded by the late Martin Luther King, Jr. These groups support this legislation because it will deter future acts of discrimination and retaliation.
In my situation, a Federal jury found the EPA guilty of discriminating against me on the basis of my race and sex and subjecting me to a hostile work environment. Yet no official action has been taken to hold these officials accountable. As such, these same managers are still in a position of authority to discriminate and retaliate against others.
For instance, since Jon Grand, a senior EPA employee, testified on my behalf during my trial, the same EPA managers have been harassing him by reducing his assignments and damaging his career. Internal discrimination is inextricably linked to government policies and practices as Richard Moore, an environmental justice activist, has stated, you cannot have injustice inside EPA and environmental justice in the community.
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Surely before my trial, in an act of retaliation, I was reassigned from my primary duties to a project to provide research in the areas of toxicology and epidemiology. Subjects outside of my area of expertise. I hold a Ph.D. from MIT in international relations. However, in my new assignment, I was to examine among other questions, within 120 days, how many chemical substances are typically in the human body, and what are the primary routes of entry for these chemicals.
I must tell this Committee that I have never taken a course in either toxicology or epidemiology. By retaliating against me, EPA managers placed the American public at risk. But I was only taken off that assignment when Chairman Sensenbrenner wrote to the agency. But how many other employees are being asked to conduct or implement programs outside of their areas of expertise as a result of their retaliation?
The No FEAR Act would require government agencies be held responsible for discrimination—discriminating—against their employees. Some critics question if the concerns of Federal workers for their own dilemma will adversely impact the programs that we serve and create. Dr. King addressed this very concern in his book, Why We Can't Wait. Many critics of Dr. King argued that the Civil Rights movement would detract funding and attention from other problems. He wrote, ''While the Negro is not so selfish as to stand isolated in his concerns for his own dilemma there is a certain bitter irony in the picture of his country championing freedom in foreign lands and failing to ensure that freedom to 20 million of its own.''
Another reason why we must stop this discrimination is that its victims become ill. As a result of stress caused by discrimination that I suffered, I developed hypertension. When I was first diagnosed, my blood pressure was 157 over 117. Which I had been informed could trigger a stroke, a heart attack, or permanent kidney damage. Yet when my cardiologist wrote four letters to the agency requesting that I be put on work-at-home status so I could avoid the stress caused by a hostile work environment, the request was denied last week. Since the agency disagreed with my doctor's recommendation, the agency hired its own doctor. He never met me or examined me before rendering his decision that I should return to the work environment, immediately.
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Within 3 days of my return to the work environment, my blood pressure was elevated 168 over 105. Mr. Chairman, I wish I could tell you that my situation is unusual, but unfortunately this is standard practice. In fact, one of my colleagues who has devoted 25 years to the Federal Government was forced to file an EEOC complaint for accommodations due to his illness as a result of HIV. I believe with the passage of the No FEAR Act, this kind of life-threatening harassment will stop.
The reporting requirement in this act is essential so that Congress may adequately perform its oversight responsibilities. The Federal Government is supposed to set the standard for the rest of the country. It is morally repugnant to treat the just compensations awarded to whistleblowers, and which is part of discrimination, as acceptable collateral damage incurred as the necessary costs of doing business.
In closing, Mr. Chairman, we can no longer live in fear of compromising our health, from the stress created by working in a cruel work environment. We can no longer live in fear of retaliation and out-of-control managers who discriminate without consequences and face no accountability for their actions. We can no longer live in fear of being retaliated against when we courageously expose fraud, waste, abuse and mismanagement in the government. We can no longer live in fear. Mr. Chairman, as victims of discrimination, we have fought a good fight. We have finished the course and we kept the faith. Congress should pass the No FEAR bill. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. Thank you, Dr. Coleman-Adebayo.
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[The prepared statement of Marsha Coleman-Adebayo follows:]
PREPARED STATEMENT OF MARSHA COLEMAN-ADEBAYO
Mr. Chairman, I testify today as a private citizen and not an EPA employee.
I thank you for your commitment and unwavering support for the civil and human rights of federal workers. Because of the NO FEAR bill, the first civil rights bill of the 21st Century, both victims of racial, sexual, and hostile work environments, and whistleblowers who have courageously fought this battle on the front lines, will experience relief from daily retaliation. The American public will directly benefit from a system that encourages merit and not cronyism or nepotism. This Bill will ensure that government agencies that discriminate directly pay for their actions and not abdicate or escape their financial obligations. Under the NO FEAR Act, Agencies will directly feel the consequences of discriminating against employees and will, I am confident, devise effective plans to address the problem.
We thank Congresswoman Sheila Jackson Lee for co-sponsoring this Bill and for her personal support of victims of racial and sexual discrimination.
Congressman John Conyers, I thank you for your long-term commitment to human and civil rights. As you know, I was raised in Detroit. You have always provided encouragement for me and my family. In fact, you wrote the recommendation for me to attend both Barnard College and to pursue my doctorate at MIT in the areas of development and African Studies. I enjoyed your mentorship while I was the senior research analyst at the Congressional Black Caucus Foundation and later your advice when I joined the United Nations.
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I would also like to thank Governor Whitman for asking the Department of Justice not to pursue an appeal in my case.
Most imporatanly, I thank God for this day.
The EPA Victims Against Racial Discrimination and the No FEAR Coalition strongly endorse this legislation. I am honored to announce that on April 28, 2001 the Executive Board of the Southern Christian Leadership Conference, the organization founded by the late Dr. Martin Luther King, Jr. also voted to endorse this Bill. We are graced by the presence today of Rev. (Dr.) Ruby Moone, Maryland State President of SCLC.
Dr. King in his book, Why We Can't Wait addressed critics that charged that the civil rights movement would detract funding and attention from other national concerns: He wrote: ''While the Negro is not so selfish as to stand isolated in his concern for his own dilemma, . . . there is a certain bitter irony in the picture of his country championing freedom in foreign lands and failing to ensure that freedom to 20 million of its own.'' Mr. Chairman, there are those that say that the concern of federal workers for our ''own dilemma'' should not impact the programs that we serve and create. I believe Dr. King would answer those critics by saying that ''injustice anywhere is an affront to justice everywhere''.
The 1964 Civil Rights Act must be strengthened to include direct consequences, both financial and personal, for participating in prohibited personal practices such as discrimination.
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Although, my case has been widely covered in the media, allow me to summarize my story. I endured five years of racial and sexual discrimination in the EPA Office of International Activities. I was called by derogatory racial epithets and excluded from any possibility of career advancement. When I filed an EEO complaint, I, like so many employees, became the target of daily harassment and unrelenting retaliation. What is not so widely known, however, is that I, like so many other victims of discrimination, became ill in the process of fighting for my civil rights.
On August 18, 2001, a federal jury found the EPA guilty of race, sex, color discrimination and of creating a hostile work environment. However, there is no enforcement of the Code of Conduct and Merit System Principles that outline disciplinary measures and consequences for discrimination and mismanagement. Therefore, these four EPA managers are still conducting US environmental foreign policy as though the complaints of discrimination and the verdict never took place. Sadly, they are now actively harassing a senior EPA staff member who testified on my behalf, Jon Grand. Mr. Grand's assignments have been severely reduced and his career damaged.
Mr. Grand is now being made an example for other employees to ponder the consequences of testifying against the government in a discrimination case. Another subtle message that is being communicated is that managers can survive, even jury verdicts, without fear of career damage. When laws and regulations are not enforced, whether inside the government or in the private sector, the judicial system, the moral fabric of our society, individuals, and the American public suffer.
Retaliation is an ever-present aspect of one's life once you file a complaint of discrimination or when you win a jury verdict. Shortly before my trial, in an act of retaliation, I was re-assigned from my primary duties—during which I received major awards—to a project to provide research in the areas of toxicology and epidemiology. I was to examine among other questions: How many chemical substances are typically in the human body? What are the primary routes of entry for these chemicals? What is the current state of environmental epidimiology? and What are some of the major and ongoing issues in environmental, health and safety fields?.
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It is important for this Committee to know that I have never taken a course in either toxicology or epidemiology. EPA managers, in their desperate attempt to retaliate against me for filing a law suit against the Agency, placed the American public at risk by deliberately assigning me work outside of my area of expertise, international relations. Discrimination and retaliation within federal agencies place the American public at risk.
I was only taken off that assignment when Chairman Sensenbrenner, then the Chairman of the House Committee on Science, wrote to the Agency and I publicly disclosed this retaliatory assignment before his Committee. But, how many other employees are being asked to conduct research or implement programs outside of their expertise as a result of retaliatory actions?
Internal discrimination is inextricably linked to government policies and practices. As Richard Moore, an environmental justice activitist has stated, ''you can not have injustice inside EPA and environmental justice in the community.''
Let there be no confusion, good policymaking, program implementation, or good science cannot co-exist in an environment of chaos caused by any form of discrimination.
Managers need to be sanctioned, including dismissal, when American taxpayers are forced to pay for their mismanagement and prejudice.
Discrimination is a human tragedy that spills over to the public arena. The public suffers because the Agencies are operated by some immoral and unethical managers. Bad managers make poor decisions that result in grave consequences. On the personal level, families are torn apart and left in financial ruin from legal costs. Ultimately, lives and careers are destroyed. Discrimination and corruption in the workplace lead to a lack of competency and poison the environment so that employees fear disagreeing with management paradigm or speaking out about mismanagement. In the end everyone loses, tax payers, the government, and individuals.
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An invisible cost of discrimination is that its victims often succumb to illness and even premature death. I would posit that the stressful and hostile environment that Lilian Peasant lived in at the Agency contributed to her early death. In an environment where there is no accountability or consequence for managerial actions—managers literally have the power of life and death. ''Power corrupts and absolute power corrupts absolutely.''
Once victims of discrimination become ill, the Agency retains ''doctors for hire'' to overturn the treating physicians recommendation. The goal of the retaliatory acts is to force the employee to choose between their health or their job. Mr. Chairman, this insidious practice, which is both immoral and unconscienable, must be stopped.
On April 30, 2001, I was forced to return to work by my immediate manager against my Cardiologist advice. My Cardiologist had written four letters to the Agency warning them about my medical status. The Agency doctor neither examined me or consulted my physician in making his diagnosis. Within three days of my return to work my blood pressure was elevated to 168 over 105. Elevated levels occured despite my usage of prescibed medication. Prior to be ordered back into the office, my blood pressure was close to normal. By the fourth day, my blood was significantly elevated requiring that I once again work from home. One week prior to my return to EPA headquarters a complete work station had been installed in my home by the Agency. Subsequently, the Agency granted me an additional sixty days to work from home. How many victims are currently enduring such work environments.
I believe with the passage of the NO FEAR Act this kind of life threathening harassment will stop.
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Daily exposure to stressful situations compromises life span and quality-of-life. Families and marriages are placed at risk when individuals suffer from daily harassment and discrimination.
A report commissioned by the former Administrator by Holland and Knight, states that EPA's minority and women employees allege that EPA's disciplinary system is discriminatory and flawed, that the Office of Civil Rights is dysfunctional, and that employees are routinely subject to retaliation for raising employment issues. There is a belief, the report offers, even among senior managers, that filing a formal complaint is a career ending action. It is my understanding that the Agency paid this company over $200,000. The EPA Victims Against Racial Discrimination could have provided this infomation to the Agency for free.
However, one useful fact that we learned from this document is that the current average processing time for EPA complaints is 575 days ( well over a year and a half) more than 3 times the legally required 180 day processing time for complaints. The government-wide average was 384 days. During the year and a half that employees wait for their complaints to be processed, harassment and retaliation become a fact of life.
Since the Agency is discouraged by the general counsel or Department of Justice from even admitting culpability in discrimination cases, the incentive to admit wrong-doing is wholly lacking.
If EPA's response to environmental emergencies was as slow as its processing time for human and civil rights abuses, the American people would have long ago indicated their displeasure.
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To my knowledge, no EPA manager has been disciplied for discrimination, even repeat offenders. In many instances, these managers are rewarded.
Discrimination is clearly evident in the firing practice at EPA. African-Americans account for 18% of those hired at the Agency, in recent years, but 57% of all fired.
The federal government is supposed to set the standard for the rest of the country. When the Federal government ignores its own laws and regulations regarding discrimination, it sets the tone for the rest of the country. With the passage of the NO FEAR bill the government will no longer be able to abdicate its responsibility to seriously deal with the problems of discrimination in the federal sector.
The reporting aspect of this legislation is very important. The primary laws which protect EPA employees who raise concerns about good science or potential public health issues are contained in six environmental laws, the Clean Air Act, the Solid Waste Disposal Act, the Safe Drinking Water Act, the Water Pollution Control Act, Superfund and the Toxic Substances Control Act. These laws have effectively blocked EPA managers from destroying the careers of scientists who in the past have questioned EPA science. Yet most EPA employees are unaware that this protection exist.
The EPA's own Office of Inspector General issued a report that recommended EPA employees be informed of their rights under the six statutes. Incredibly, EPA officials during the last administration overrode the advice of the OIG and made a decision to continue to deny information about their rights as employee-whistleblowers. Instead of advising employees of their rights under the six environmental statutes, EPA officials removed any mention of the environmental whistleblower protections from the proposed notice, and issued an order which failed to inform employees of their rights under the law. When later questioned about this decision during a hearing before the House Committee on Science, an EPA official stated that the Agency chose not to inform it's employees of their protections under these environmental laws because there is no statute requiring it to do so.
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It is morally repugnate to treat the just compensations awarded to African-Americans, women, the disabled and whistleblowers as acceptable collateral damage incurred as the necessary cost of during business.
Mr. Chairman, we can no longer live in fear of compromising our health from the stress created by working in a cruel environment.
We can no longer live in fear of compromising our families futures and that of our communities.
We can no longer live in fear of retaliation and out-of-control managers who discriminate without consequences and face no accountability for their actions.
We can no longer live in fear of being retaliated against when we courageously expose fraud, waste, abuse, and mismanagement in the government.
We can no longer live in fear of losing our jobs because we refuse to compromise our principles or morals.
We can no longer live in fear. And, we can no longer wait.
Mr. Chairman, as victims of discrimination, we have fought a good fight, we have finished the course, we have ''kept the faith''. Congress should pass the NO FEAR bill.
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Chairman SENSENBRENNER. The Chair will now recognize Members in the orders in which they have appeared alternately by sides.
The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Morning and thank you, Mr. Chairman. I greet our former colleague Kweisi Mfume and my former constituent, I still thought she was my constituent. You know we have a rule in Detroit once a constituent always a constituent.
Chairman SENSENBRENNER. We will get into that when we examine elections. [Laughter]
Mr. CONYERS. But let's start in Florida first. Now to begin with, I want to commend Chairman Sensenbrenner and I think this is an important investigation, and I am pleased that he's doing that. I would like to observe that you do not have to be a liberal to support fairness in the government or in Civil Rights movement. So if anybody thinks that he's changed his philosophy, I would I would, from personal experience, disabuse one and all from that. But we can work together and so I commend this hearing today. The bill itself responds to a problem about which we can do much more.
I want to create a uniform standard for agencies to discipline managers who have committed illegal discrimination in connection with whistleblower retaliation. We can't do this episodically, one by one, we'll never come out of this in an effective way. We also need to encourage the use of EEOC-based voluntary alternative dispute resolution at an early stage in the process and to provide for more funding to process the backlog, the huge backlog of cases that exists.
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The Judiciary Committee can't do that by itself. We want to examine the standard of proof required to prove illegal conduct and any other disincentive to employees seeking redress of their legal rights. So we're at the beginning. I commend my Chairman for the purpose, for what he's done here in bringing us all together. But it is not the end of the legislative process. And we are going to work together to develop a full and complete response to racism, sexism, illegal retaliation within the Federal Government of all places.
Now, the one thing we can all do from this moment on is make sure that the old reprisal game still isn't being played after a person has complained, been victimized, went to court, won a lawsuit, comes up on the Hill, and they're still coming at her. So we want to put everybody on notice in this one small part of Federal Government, cut it out. Starting now, the next thing we have to acknowledge is that EPA is not alone.
Last week we have just settled a lawsuit involving black agents with guess who? The Federal Bureau of Investigation. And what about the suits against Alcohol Tobacco and Firearms, ATF, Drug Enforcement Administration, Immigration and Naturalization Service, Department of Justice again, Secret Service. It goes on and on.
So this is, as you have said, a common problem that we now have an opportunity, thanks to the creative legislative skills of Chairman Sensenbrenner, to really begin to deal with the whole subject. This cannot be dealt with in the morning with one victim and everybody sympathizing. This is a long entrenched problem.
The Congressional Black Caucus has been working this for 20 years. We have been listening to police and Federal people, marshalls, everybody, it would almost be a shorter list to talk about who hasn't been the victim of a subject of a class action suit.
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So this is an important event that we're doing this morning and I want to commend all the witnesses. I look forward to working very much closely with the NAACP as we move forward in this very difficult area. And I thank the Chair.
Chairman SENSENBRENNER. The gentleman's time has expired. The gentleman from Pennsylvania, Mr. Gekas.
Mr. GEKAS. I thank the Chair. I have noted that in the testimony of all four of our witnesses, there was a common theme of approval of the bill with regard to accountability. And Mr. Harnage himself includes in his definition of that accountability some personal responsibility on the part of everyone concerned. And that's important. And this gibes with the President's proposals in various fields up to now, including education reform, and even his tax cut legislation which bring into play particularly the education reform proposal accountability.
That is a strong theme in everything the government does, and all four of you have, in one way or another, endorsed the strengthening of that theme. Kweisi was, I think, absolutely correct in saying that if it's going to happen in the Federal Government where it should be a model of behavior across the Nation, then we are amiss. And the bill goes a long way as to setting us right in that regard.
Mr. Mihm, I do want to ask one question, the bill calls for, as one of its tenets, requiring annual reports to the Congress on the number and severity, et cetera, you seem—you're in accord with that apparently?
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Mr. MIHM. Yes, sir.
Mr. GEKAS. My problem is, I really thought I'm confessing my ignorance that there was a system of reportage, or reporting of these incidents to the Congress. Am I to imply from the—or infer from this provision in the bill and your testimony that this would be a new thing?
Mr. MIHM. There are requirements in place that agencies report data, for example, to EEOC on a variety of matters related to discrimination. The problem is, and this is laid out in our written statement, is that you have a variety of different agencies and different avenues that employees can pursue if they feel they have suffered discrimination, or if they have suffered reprise for whistleblowing. These different avenues don't report in consistent ways with consistent time frames with consistent definitions. Basically, sir, what you have, you have a patchwork of different requirements and agencies dealing with employee protection for discrimination and reprisal that don't all come together to allow us to have a unified, comprehensive picture of the amount of discrimination and reprisal and the outcomes of those cases.
So that's one big structural problem. Second, you also have long-standing problems that EEOC has had in getting good information out of the agencies. And EEOC has an initiative underway that is designed to improve the information it gets from agencies, but basically, they have had problems getting data from agencies in the right format that would allow for a targeting and an analysis of really what's going on in terms of employee discrimination. So you have basically those two different problems.
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Mr. GEKAS. What is notable about that testimony and the correlation is that we cannot have good accountability, strong accountability, unless we have the data that goes with it.
Mr. MIHM. Absolutely.
Mr. GEKAS. So this bill marries those two concepts.
Mr. MIHM. You cannot make progress unless you know what's going on.
Mr. GEKAS. Kweisi, I have notified the Speaker of the House that if he runs out of replacements for the gavel on a given day, that he's to call upon you and that you will rush over to temporarily gavel us down as we need it. Are you willing to serve?
Mr. MFUME. I'm willing to serve. I am assured it will be a news story that we will have to respond to. But it was my pleasure to serve as Speaker pro tem.
Mr. GEKAS. Yes, we admired your service in that term.
No further questions and I yield back my time.
Chairman SENSENBRENNER. Just for the record the Congress does not require the Speaker of the House to be a Member. The gentlewoman from Texas, Ms. Jackson Lee.
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Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me add my appreciation for the expeditiousness in which this legislation has come to a hearing now in the Judiciary Committee. Let me acknowledge all of the witnesses for your eloquence, and as well, your commitment. Obviously, Mr. Mfume, let me thank you for the pivotal role that the NAACP, the Southern Christian Leadership Conference, and the coordination of those of you who have constantly put yourselves on the front line, both in terms of the energy and work, but also in terms of the intellect. I think the research that the NAACP offers is outstanding.
Chairman Sensenbrenner has been at the forefront and I appreciate that. We have been able to collaborate both in terms of the rightness of this position but also on the passion about this issue. I would offer to that that in paraphrasing Dr. King's words, since my very, if you will, long-standing heroine, Dr. Coleman-Adebayo, has withstood all of this.
''Discrimination anywhere is discrimination everywhere.'' And I believe what we are doing today, as I look at the audience, and is similar to some of the challenges that we have been given over the years, and the challenges that some day we shall overcome. This particular legislative initiative, and I appreciate the testimony of all of the witnesses, and I will recount for some and I will have a question within the 5-minute time frame, but this is a legislative initiative that I think will set the tone for what is still happening in America, in the workplace and in corporate America in the private sector.
And I am reminded—I had—of the role of the Federal Government throughout the Civil Rights era. It was always that institution during a period of time that was looked to to come to save the day—whether it was the FBI during the civil rights activities of the deep south, whether it was the Department of Justice in conjunction with so many of our civil rights organizations.
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And so now, as we look to tell the world that discrimination is still about, and how do we correct it, it certainly must start with the Federal Government. And it includes those who would have offered themselves to testify on behalf of the discriminated, and certainly in the instance of the EPA, and I am gratified that you have mentioned the EPA Administrator that we worked very hard for this to be understood, that this was not personal, but this was real, that we could not accept that the head was against it. If the tentacles, the management, was still confining.
So I think it's important to note several elements that we have, and I would like to just recount them for you. And that is that we notify Federal employees now of their rights.
Isn't that interesting? Many did not know that we require the annual reports that the GAO has said are so crucial and that we penalize the specific Federal agency for its discriminatory practices, notice of a punitive nature for that. And I think that is extremely important to be able to set the tone. I might say to our good friends in AFGE, I have listened to you, I look forward to working with you on that issue. And I thank you for your leadership.
Let me ask two questions to Mr. Mfume, and, of course, to Dr. Coleman-Adebayo.
Mr. Mfume, as it relates to your history in Congress, but as well, as you have seen the atmosphere that we're now in, this might be characterized as overkill. You have civil rights laws, you have the EEOC. What is your firsthand practical experience of the necessity of this legislation, and I do thank you for your testimony. And then to the good doctor, I understand that you, and I appreciate you being a private citizen at this point, but that you are under a doctor's care, it is difficult for you to return at this time. And I would like you to explain that further about your physical condition, if you don't mind, to allow the Members to hear the extreme conditions that you are working under and you are symbolic of many who are in this room who have worked under very extreme conditions, including whistleblowers and those who have helped in cases like this.
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Mr. Mfume.
Mr. MFUME. Thank you very much, Ms. Jackson Lee. And in your absence, I took time to note our sincere appreciation for your sponsorship of this bill, both you and the Chairman, and for the leadership you provided. I believe that as long as we have discrimination of any type in our workplace, that one cannot really be accused of overkill, except to assume that our job is not to get rid of it. And I think that our job really is.
At the NAACP we carry a little basic philosophy with respect to the sort of discrimination that takes place in our society, and we note that while we look at this bill as a first step, we recognize as someone said earlier, that episodically we have got to find a way to get beyond and step here and step there. We really need to comes to grips with this entire problem.
We believe that racism, sexism, anti-Semitism are wrong. That black bigotry is just as cruel and evil as white bigotry. That immigrant bashing, union bashing, gay bashing and city bashing deplete us as a Nation. For the Federal employee, it is a deeper understanding of what the problem is, however, because they understand that Jim Crowe, Sr. is dead, but Jim Crow, Jr. is alive and well and oftentimes in Federal workplaces, creating situations—threatening people, intimidating individuals because of their race, because of the way they worship, because of what their sexual orientation may be, because of what their surname is.
All of those things are wrong. And the worst part of all of this is, as I said in my testimony, there are so many individuals who are white, both men and women, who are seeking to uphold the law with respect to antidiscrimination and existing Federal regulations, and they themselves find that they are the victims of some sort of campaign to further intimidate them for carrying out the law.
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Mr. MFUME. So I don't think we could ever be accused of overkill when we are attempting to get rid of a monster such as discrimination.
Ms. JACKSON LEE. Dr. Coleman-Adebayo.
Ms. COLEMAN-ADEBAYO. Thank you.
One of the reasons why I decided to disclose something that I think is so very personal—and for me this was, I must admit, very difficult because I tend to be a very private person—but what has—what I think—one of the issues that I think has become very close to my heart is the fact that when people think of discrimination, particularly in the Federal sector, most people think that Federal employees are essentially looking for higher promotions, and we are, and better benefits, and that's also true. But one of the real issues of discrimination is that people become ill and some people die in the process of fighting this battle.
I have seen it over and over again, that this is really a life-and-death struggle in the Federal Government. People are trying to support their families, people are trying to raise their children, and the Federal Government offers some framework for doing those kinds of activities. But in that framework there is a certain cruelty that is attached to it, and that is that sometimes people have to make the ultimate sacrifice, and that should not be the case in the Federal Government.
The other day—on August 28th, to give you a very extreme example, a colleague of ours, Ron Isler, died. He had written to his manager, and he said at the end of his memo that he sent to some of his colleagues, ''As I have requested during several of our meetings''—and he lists the dates—''to be removed from ongoing negative racial and harassing environments in OMA and that to date no relief has occurred.'' .
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Well, he passed away very recently. I said August, but it was, I think, maybe April 18th, if I'm correct, April 18th. I apologize.
So I think it's important for this Committee to know that we're really dealing with survival issues here. We're dealing with issues of life and death and that people are literally being stressed out of their physical existence because of the discrimination.
Now, I know that this kind of discrimination is much more exotic when it's a hanging or when it's someone being dragged by a truck, but I'm telling you hypertension and stress and blood pressure and cancer kills just as well as those other kinds of activities. So we've got to get to the heart of discrimination because it's costing people their lives.
Thank you.
Chairman SENSENBRENNER. The gentlewoman's time has expired.
The gentleman from North Carolina, Mr. Coble.
Mr. COBLE. Thank you, Mr. Chairman.
Mr. Mfume, good to have you back on the Hill.
Good to have all four of you as panelists this morning.
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As the gentlelady from Texas said, Mr. Chairman, you have been on the forefront of this issue, and I commend you for that. I thank you for having scheduled this hearing today.
Mr. Mfume, you just pointed out, I think, no race has a corner on the bigot market. And I think when bigotry is practiced it's equally onerous, whether blacks, white, yellow or tan are guilty. Fortunately, I think most of us are not, but the few who are—strike that—maybe more than a few, those who are, are the ones who are heard most consistently, and that's what we're trying to address this morning, I think.
Mr. Harnage, let me ask you a question. How many Federal employees are nonunion? Or would it be easier to answer how many Federal employees are affiliated with the union?
Mr. HARNAGE. The Federal Government is somewhere in the neighborhood of 75 to 80 percent unionized.
Mr. COBLE. Okay. So the obvious majority of Federal employees are unionized. Would the unions be responsible or should the unions be responsible for protecting the rights of their members in situations like we're discussing here, A; and, B, has your union been involved in some of these situations that we've just discussed this morning?
Mr. HARNAGE. Yes, sir, we have. In fact, I believe we're the only union that has on its National Executive Council an elected member that is over what we call the Women's and Fair Practice Department to make sure that we, as unionists, are sensitive to the problems of discrimination as well as offering assistance to our members who are encountering those types of problems. We handle many discrimination cases, yes.
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Mr. COBLE. Go into a little more detail. To what extent do you think that the union should be responsible?
Mr. HARNAGE. We should be as responsible as the law will allow us to be, and we should be as responsible as the employee wants us to be. In a lot of cases, we do allow binding arbitration as a proceeding to try and expedite the EEO process. The EEO process, in my opinion, is designed to wear the individual down and have them give up before they ever get any justice; and so we do offer that to them. But they have the—since there is the statutory appeal rights they have the right to go out and hire their own attorneys and sometimes follow a different route than the union contract.
Mr. COBLE. Assuming that the employee involved would want your assistance, do you feel like you have been afforded an open door or do you think there has been frustration or maybe both?
Mr. HARNAGE. Anybody that says there is no