Agencies Scramble to Adhere to New Bias Law

New software that tracks discrimination complaints. Training courses. Even paper handouts explaining employees' rights. These are among the tools federal managers are employing while they wait for administration guidance on how to comply with a new law that holds them and their agencies accountable for discrimination and whistleblower retaliation.

The law, the 2002 Notification and Federal Employees Anti-Discrimination and Retaliation Act, or No Fear, took effect Oct. 1. It requires agencies to, among other things, issue public reports tracking discrimination cases as they move through the system and train managers and employees in their rights under discrimination and whistleblower retaliation laws. Also, for the first time, agencies will have to pay judgments, awards and settlements in employee discrimination lawsuits out of their own budgets.

The Office of Personnel Management and the Equal Employment Opportunity Commission have drafted proposed rules dictating how agencies must abide by the law's various provisions, but those regulations remain under review by the Office of Management and Budget. OMB expects to clear the proposed rules for publication in the Federal Register sometime this month, an OMB spokeswoman said.

Meantime, some agencies are moving forward with efforts that should put them in compliance with at least part of the No Fear Act.

The Patent and Trademark Office and the General Services Administration both recently purchased the same commercial, off-the-shelf software that will allow them to track the movement of discrimination complaints through the equal employment opportunity system.

PTO began buying the software before Congress passed the No Fear Act last year because the agency recognized the need to track complaints better, said Jo-Anne Barnard, PTO's chief financial officer and chief administrative officer.

"Our current system requires a lot more manual input," Barnard said. "What we're doing is going to a Web-based system that makes it much easier to manage and is better for generating reports that will be more meaningful to management."

The No Fear Act requires agencies to post on their Web sites quarterly reports summarizing the number, status and outcome of discrimination complaints at various stages in the process. The law requires the first report Dec. 31, but EEOC officials have said that deadline likely will be extended until the regulations are in effect.

The act also requires agencies to submit annual reports to Congress that outline, among other things, the number of cases where discrimination was found to have occurred and any disciplinary action taken against employees as a result.

The Social Security Administration has used an automated system it developed internally to track complaints for years, said Mark Anderson, the agency's associate commissioner for the Office of Civil Rights and Equal Opportunity.

Anderson said such a system is invaluable to managers and supervisors, who are able to track cases as they move through the system and then analyze trends in the filing of complaints.

"It gives us valuable management information in looking at and maintaining the inventory and flow of the cases," Anderson said.

Because the agency already has its tracking system up and running, it is well-positioned to comply with the regulations issued by EEOC and OPM, Anderson said.

The Air Force, Environmental Protection Agency and EEOC itself use a case-tracking system available from Human Resources Technologies Inc., based in Alexandria, Va. The software streamlines the processing of EEO complaints and allows agencies to track cases through the information, formal and appeals stages, Chief Operating Officer Jeff Newhouse said.

The software was designed specifically to help agencies gather case information required under EEOC Form 462 and likely will have to be updated to meet specific requirements under the No Fear Act, Newhouse said.

"At this point we're just kind of biding our time, waiting for the government to write the regulations," Newhouse said.

Avue Technologies offers an EEO case-tracking system as part of its suite of automated federal work-force management and hiring programs, but no agency has purchased it, said Linda Brooks Rix, co-chief executive officer of the Tacoma, Wash., company.

Rix expects that to change soon, as agencies turn to technology to respond to No Fear's reporting and tracking requirements.

"The EEO offices and agencies have been long underfunded, and their ability to build a business case for pushing for technology solutions has, up until No Fear, really not been a highlight," she said. "When you have to start reporting large volumes of data, you can't do it any other way without technology. I think the No Fear legislation will provide EEO operations with a certain level of critical mass to support agencies moving forward with these kinds of investments."

The No Fear Act also requires agencies to notify employees and job applicants of their legal rights and protections and to train employees on their rights and remedies under laws against discrimination and whistleblower retaliation.

All agencies are required under the act to post notices on their public Web sites, although several are taking additional steps to ensure employees are aware of their rights. Both PTO and GSA plan to insert notices in pay stubs that are mailed to employees' homes. GSA also is preparing a notice that will be included in a newsletter sent to every employee via e-mail. Social Security distributed a paper notice to all employees at their work stations to notify them of the No Fear Act.

To meet the act's training requirements, GSA is developing a Web-based training program that will be offered to employees through the agency's online university, which delivers training tools to workers' desktops, said Madeline Caliendo, associate administrator for civil rights at GSA. The training program will inform employees of the agency's requirements under the No Fear Act and employees' rights under the law.

"We think that's a great way to make the training module available to all GSA associates," Caliendo said.

Caliendo said there has been no discussion internally about making the training program available to other agencies.

Social Security and PTO said they both already provide some training on employees' rights under anti-discrimination and whistleblower retaliation laws and will modify their existing programs as necessary once the regulations are made final.