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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.