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The Journey to ‘No Fear’
FEAR Institute, a non-profit
oversight organization, issued a report card in which selected federal
agencies were graded on how well they implement the first civil rights law
of the 21st century: the Notification of Federal Employees
Anti-discrimination and Retaliation Act of 2002 [No FEAR]. The majority of
agencies received a grade of “F” in the three criteria categories with three
agencies, the Department of Labor, the Department of Justice and Agriculture
posting data so inaccessible or non-existent that grading was rendered
impossible. The public expects the federal government to set an example for
the private sector, but data issued by the various agencies reveal a
chilling environment of discrimination, harassment, retaliation, and abuse.
The law went into effect on Oct 1st, 2003.
The No FEAR law requires federal agencies to use their own budgets to
reimburse the Department of Treasury Judgment Fund to pay for successful
discrimination claims. Thus, these agencies will begin to feel the pain of
protecting and shielding discriminating managers in their pocketbooks. In
addition, the No FEAR law requires federal agencies to notify its employees
of their legal protections under law and to report to Congress the
disciplinary actions taken against discriminating managers. In accordance
with the No FEAR law, agencies must provide statistical information on
discrimination and whistle blower complaints. The results of the report card
could suggest that some federal agencies do not establish a system of
accountability or transparency that should be the hallmark of a “federal
government.”
For example, according to the US Environmental Protection Agency (EPA)/No
FEAR data, in the first quarter of FY 04 the processing time from the filing
of EEO complaints until final action is taken was, on average, 838 days – by
law these investigations are suppose to be completed (with the exception of
extensions) in 180 days. EPA also reported that there were three findings of
discrimination and apparently not a single manager was disciplined or fired
for breaking civil rights laws. According to a June 26, 2003, GAO report, a
report Congresswoman Jackson Lee requested, EPA has not disciplined any
manager or employee for discriminatory conduct since 1995.
The No FEAR law certainly has its critics. Bill Bransford, counsel to the
federal government Senior Executives Association (SEA) said recently in a
Federal Times article that his organization would fight any action by
Congress or the Administration that would mandate disciplinary actions
against a manager for workplace discrimination, “It’s a real concern that
the No FEAR act is the first step to hold managers out as scapegoats…merely
because a jury has ruled in favor of a plaintiff.” The SEA represents 6,000
career executives across the country. The reality is that managers in the
federal government have historically not had to fear disciplinary actions
for breaking civil rights laws. For these managers, jury verdicts have
neither meaning nor substance. This actually alludes to another problem that
we face in America – tort reform and the diminution of the juror’s role in
civil actions.
The civil juror is widely perceived as suspicious and even dismissive of
victims and their grievances. Critics who have assumed or asserted the
ignorance of jurors may have overlooked what jurors know well: everyday
realities and everyday people. Plaintiffs are sometimes threatened, because
jurors believe that they understand what reasonable persons will or should
do. Tort reform law that threatens to strip civil juries of compensation
award authority in demographic areas that have a majority of minorities
demonstrates a discriminatory effect. Not only would such law fly in the
face of Democracy, the underlying intent of this legislation violates the
equal protection clause of the U.S.
Until the passage of the No FEAR, discriminating federal managers were not
only shielded by the federal system but given promotions despite claims of
misconduct. Without oversight from the Legislative and Executive Branches,
this situation only bred uncomfortable, unsafe, and hostile work
environments. This confidence is rooted in the knowledge that discriminating
managers had little to fear from the lack of oversight, confirming that
Bransford’s view is correct. Discriminating managers in the federal
government have operated above the normal standards of democracy. Under the
No FEAR law federal agencies must report the disposition of disciplinary
actions by agencies against discriminating manager to Congress.
Despite federal law, agency heads have repeatedly refused to acknowledge
that civil rights laws are being violated in their agency. A January 22,
2004 press release on the issuance of No FEAR regulations cites the Office
of Personnel Management (OPM) Director as deeming claims for the violation
of civil rights law “inappropriate reactions.” If the Director of OPM
defines such behavior as simply “inappropriate reactions,” how can the
American public expect the OPM to translate the intent of Congress and the
President into guidance for the federal government?
Government must become more responsive and accountable to the public,
particularly those who have suffered at the hands of discriminating managers
and a dysfunctional EEO system.
Federal government victims endure a cycle of retaliation and harassment.
Lives and livelihoods are destroyed. Families and communities are torn apart
as a result of the years of stress resulting from workplace discrimination.
The merit protection system does not work when civil rights are suppressed.
The cost for the victims is prohibitive. Attorney retainer agreements can
cost upwards of $30,000. Alternatively, the government provides, free of
cost, attorneys to managers to defend them against civil rights victims. The
vulnerable are at the mercy of the mighty.
The US Environmental Protection Agency’s Director of Civil Rights, Karen
Higginbotham, in a March 10, 2004 letter to the National Treasury Employees
Union Chapter 280, admitted that two years after the passage of the No FEAR
Act, EPA still does not have procedures in place to discipline
discriminatory managers. The lack of action by federal agencies to
discipline racist and sexist managers, could either be construed as
negligence or a willful disregard for congressional mandates and for the
law.
Congress has done its part and the President is to be commended for doing
the right and noble thing and signing the bill into law. Federal agencies,
however, are dragging their feet on the implementation of No FEAR. It seems
that they are more concerned with protecting the scofflaws than carrying out
the letter of the law.
The fight for the integrity and effectiveness of No FEAR is a battle that
America cannot afford to lose. Federal workers who have been silent and
others who also value justice, equality and human dignity must join this
battle. I ask you to join this struggle.
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