Notification and Federal Employee Anti-Discrimination and Retaliation of 2002 Act

In 2002, the No FEAR Act (Notification and Federal Anti-Discrimination and Retaliation Act of 2002) was signed, and the law became effective on October 1, 2003. The Act is intended to improve agency accountability for antidiscrimination and whistleblower laws. This is accomplished by dictating that governmental agencies must use their own budgets to pay for any settlements, judgments, or awards against them in cases involving whistleblowing and discrimination.

The No FEAR Act also requires employers to notify their employees of their rights under both discrimination laws and the Whistleblower Protection Act, or WPA. Along with other, similar workplace laws, the No FEAR Act was implemented as another measure to ensure that federal employees are able to work free from discrimination and retaliation. Unlike other laws, the Act regulates federal employers; most other employment discrimination laws generally apply to non-federal employers.

In terms of what the No FEAR Act actually does, it establishes specific requirements that all Federal agencies must follow. Some examples of such requirements include, but may not be limited to:

• Federal employers are required to provide notification to all employees of their rights under current and updated whistleblower and anti-discrimination laws;
• Federal agencies must post statistical data to their public website, reporting the number of equal employment opportunity complaints as well as categorize those numbers according to the specific types of discrimination that the complaints alleged;
• Federal employers must ensure that all managers have received proper training for the following categories: diverse workforce management, early and alternative conflict resolution, and essential communication skills;
• Federal agencies are required to conduct investigations into trends of these employee complaints in order to determine whether there is a common cause for the complaints;
• Federal employers must establish a process intended to adequately deal with complaints, as well as improve the workplace environment in general; and
• Any federal employees who engage in discriminatory behavior should be promptly and fairly disciplined by the federal employer according to established protocol.

What Are The Training Requirements Set Forth By The No FEAR Act?

The No FEAR Act requires all federal agencies to train all of their employees and managers in terms of their rights under the Act. Such training must take place at least once every two years, and new employees must receive this training within ninety days of beginning their employment. Preferably, No FEAR Act training would take place during a new employee’s orientation.

The specific training program implemented may vary from employer to employer. Generally speaking, No FEAR Act training will cover what constitutes illegal discrimination in the workplace, as well as harassment and hostile work environments. This section should also cover who belongs to a protected class, and which activities are covered by anti-discrimination laws.

Some examples of specific anti-discrimination laws that should be covered during No FEAR Act training include:

• Title VII: Because Title VII of the Civil Rights Act of 1964 forms the foundation of anti-discrimination laws, it should be included in any solid training program. Title VII prohibits employment discrimination on the basis of several characteristics, and does not allow for retaliation if an employee participates in the complaints process. This particular anti-discrimination law also requires reasonabe accommodation for employees who much practice their religion during working hours;
• Age Discrimination in Employment Act: The ADEA specifically prohibits employers from discriminating against applicants and federal employees simply because they are aged 40 or older. The Act also protects employees from any employment actions which could be based on stereotypes or stigmas associated with the person’s age. However, it is important to note that the Act does not prohibit discrimination based on youth;
• Americans with Disabilities Act: The ADA prohibits specific employers from discriminating against otherwise qualified individuals based on them being disabled in some way. These employers include private employers, state and local governments, employment agencies, and labor unions;
• The Rehabilitation Act of 1973: This Act does not allow employers to discriminate against an employee with a disability as defined by the Act. The Act defines a disability as a physical or mental impairment which significantly limits one or more major life activities. Under this definition, a temporary or short term illness does not qualify as a disability which would be protected from discrimination. Additionally, the Act requires employers to consider reasonable accommodations for disabled employees and applicants; and
• The Equal Pay Act of 1963: According to The Equal Pay Act of 1963, employers are prohibited from distributing unequal wages based on protected class. Specifically, employers cannot provide unequal wages based on whether the employee is assigned male or female at birth. The Act also lists the criteria for when a pay differential would be allowable.

No FEAR training should also provide details and clarification regarding the following subjects:

• Marital status discrimination;
• Political affiliation discrimination;
• Protections available against reprisal or retaliation;
• Protocol for reporting alleged discrimination;
• How EEO complaints are processed within the company;
• Timelines in which complaints must be filed;
• What should happen once a complaint has been filed;
• Manager and supervisor responsibilities; and
• Rights under the Whistleblower Protection Act.

Finally, training should include resources for employees in need. An example of this would be how a No FEAR Act training which covers marital status and political affiliation discrimination should also inform the trainees that they can file a complaint with the U.S. Office of Special Counsel, or the Merit Systems Protection Board.

What Are My Protections As a Federal Employee?

Federal employees who wish to report an employer for a violation of the law can do so safely under the No FEAR Act. The Act ensures that federal agencies are held to a higher standard in terms of accountability for violations of anti-discrimination laws. This includes the previously mentioned whistleblower protection laws.

A whistleblower blows the whistle on their employer’s illegal or unethical behavior by reporting their employer to the appropriate authorities or commission. Legally, whistleblowers legally cannot be fired for their actions; Employers are prohibited from retaliating against them by firing them or by denying them benefits they are entitled to.

The following are some of the more common examples of whistleblowing:

• The employer is violating public health laws, leading to illness or death;
• The employer violates workplace safety laws;
• The employer is in violation of hiring and firing laws;
• The employer is practicing discrimination against a protected class and/or activity;
• Mismanagement of company funds; or
• Abuse of authority.

It is important to note that although whistleblowers are protected by whistleblowing laws, they may still be fired for other reasons not related to their whistleblowing actions. An example of this would be if the whistleblower also has a history of tardiness. Their employer may legally terminate their employment for this reason, without violating any whistleblower laws.

Whistleblowing employees, as the witnesses to questionable behavior, are provided with immunity against retaliation and termination after reporting their employer to law enforcement or a government agency. Because of this, if they are terminated solely because of whistleblowing, they have the right to sue their employer for wrongful termination. If the action they reported was not actually illegal, but the employee reasonably believed that it was, they are still protected against any employer retaliation including termination.

Do I Need An Attorney For Assistance With Issues Related To the No FEAR Act?

If you are an employee attempting to assert your rights and protections under the No FEAR Act, you should consult with an experienced and local wrongful termination attorney. An experienced and local employment law lawyer will be best suited to helping you understand your rights according to the laws of your state, as well as any federal protections that are available to you.

Additionally, an attorney can also help you file a complaint with the appropriate agency. Finally, an attorney will also be able to represent you in court, as needed.