No Fear Act
Notice:
Department of the Army mandates NO FEAR Act Training every two years. Public (Law 107-174), requires that all Federal employees receive training regarding their rights and remedies under Federal antidiscrimination and whistleblower protection laws. Employees will gain understanding of the purpose of the No FEAR Act, know their rights and remedies and how they can exercise their rights under these laws. This training is available online through LMS. On May 15, 2002, Congress enacted the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002,'' which is now known as the No FEAR Act. One purpose of the Act is to "require that Federal agencies be accountable for violations of anti-discrimination and whistle blower protection laws." [See Public Law 107-174, Summary.] In support of this purpose, Congress found that "agencies cannot be run effectively if those agencies practice or tolerate discrimination." [See Public Law 107-174, Title I, General Provisions, section 101(1).] The Act also requires this agency to provide this notice to Federal employees, former Federal employees and applicants for Federal employment to inform you of the rights and protections available to you under Federal anti-discrimination and whistle blower protection laws.
Anti-Discrimination Laws
A Federal agency cannot discriminate against an employee, former employee, or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status or political affiliation. Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S. C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. 2000e-16. If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin or disability, you must contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with your agency. See, e.g. 29 CFR 1614. If you believe that you have been the victim of unlawful discrimination on the basis of age, you must either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 calendar days of the alleged discriminatory action. If you are alleging discrimination based on marital status or political affiliation, you may file a written complaint with the U.S. Office of Special Counsel (OSC) (see contact information below). In the alternative (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through your agency's administrative or negotiated grievance procedures, if such procedures apply and are available.
Whistle Blower Protection Laws
A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you have been the victim of whistle blower retaliation, you may file a written complaint (Form OSC-11) with the U.S. Office of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC 20036-4505 or online through the OSC Web site: http://www.osc.gov
Retaliation for Engaging in Protected Activity
A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under any of the Federal anti-discrimination or whistle blower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the Anti-discrimination Laws and Whistle blower Protection Laws sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy.
Disciplinary Actions
Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee for conduct that is inconsistent with Federal Anti-discrimination and Whistle blower Protection Laws up to and including removal. If OSC has initiated an investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 1214(f), agencies must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of Federal employee who has been accused of discrimination.
Additional Information
For further information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate offices within your agency (e.g., EEO/civil rights office, human resources office or Solicitor's office). Additional information regarding Federal anti-discrimination, whistle blower protection and retaliation laws can be found at the EEOC Website: http://www.eeoc.gov and the OSC Website: http://www.osc.gov
Existing Rights Unchanged
Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).
The intent of this Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002, "No FEAR Act" is that federal agencies will pay more attention to their EEO and whistle blower complaint activity and act more expeditiously to resolve complaints at the administrative level when it is appropriate to do so. Each agency is required to post on its primary website homepage , a link to the data required to be posted under the Act and designate the link and that data as "Equal Opportunity Data to be posted by the No FEAR Act."
Key Terms
Affirmative Action — Positive steps taken by an employer which contribute toward greater employment opportunities for minorities, females, the elderly, and the disabled. In federal employment, extra effort must be made to include qualified women, minorities, employees over 40, and the disabled at grade levels and in job categories where they are under-represented.
Affirmative Action Plans/Affirmative Employment Plan — Written plans for programs required by Executive Order 11478 and other laws and regulations. AAP's may contain studies which show how the work force at the activity has been used, and may include goals and timetables for increasing the representation of protected class members in those areas where they have been under represented.
Complaint — The first step taken by an employee who believes he or she has been discriminated against. A complaint is an allegation of illegal discrimination that is handled through an administrative procedure. A complaint may result when an employee believes he or she has been unfairly treated because of race, color, etc. The allegation itself is not proof that illegal discrimination has taken place. The investigation that follows the filing of a complaint will determine if illegal discrimination has, in fact, occurred. A person who files a complaint is called a complainant.
Class Complaint/Class Action —
— A complaint stated or filed by a group of people who feel that personnel or management policies or practices discriminate against them as a group. Members of the group believe that the characteristic they share -- race, color, religion, sex, national origin, age, or disabilities the basis for the discrimination. For example, a class may be made up of women who believe they have been consistently discriminated against at GSA because of their sex. In such a case, all female employees, past and present, and all female applicants would be included in the complaint. When a class complaint goes to court, it becomes a class action. As with complaints by individuals, illegal discrimination may or may not have occurred.
Discrimination — The word discrimination is often used to mean illegal discriminatory acts. Discrimination simply means noticing the differences between things or people that are otherwise alike, and making decisions based on those differences. We discriminate when we buy one product over another, when we choose our friends, and when we make personnel decisions based on merit related factors. All these forms of discrimination are legal and necessary. However, some types of discrimination in employment have been made illegal. Illegal discrimination is unfavorable treatment of a person by category, class, or group rather than objective treatment on the basis of merit. Under EEO law, it is illegal to discriminate on the basis of race, color, religion, national origin, sex, age, genetics, or mental/physical disability. Discrimination can be intentional or unintentional. See Disparate Treatment and Disparate Impact.
Disparate Treatment — Inconsistent application of rules and policies to one group of people over another. Discrimination may result when rules and policies are applied differently to members of protected classes. Disciplining Hispanic and Afro-American employees for tardiness, while ignoring tardiness among other employees, is an example of disparate treatment. Such inconsistent application of rules often leads to complaints.
Disparate Impact — Under EEO law, less favorable effect for one group than for another. Disparate impact results when rules applied to all employees have a different and more inhibiting effect on women and minority groups than on the majority. For example, nonessential educational requirements for certain jobs can have a disparate impact on minority groups looking for work, as they often been limited in their access to educational opportunities.
Ethnic Group — A group of people who share a common religion, color, or national origin. Irish-Americans, Mexican-Americans, German-Americans, Italian-Americans, Hindus, Moslems, and Jews are examples of ethnic groups. Some members of ethnic groups participate in the customs and practices of their groups, while others do not. Discrimination based on these customs and practices may be illegal under EEO law. See Minority.
Equal Employment Opportunity — The goal of laws which make some types of discrimination in employment illegal. Equal employment opportunity will become a reality when each U.S. citizen has an equal chance to enjoy the benefits of employment. EEO is not a guarantee of employment for anyone. Under EEO law, only job related factors can be used to determine if an individual is qualified for a particular job. Ideally, EEO laws and Affirmative Action programs combine to achieve equal employment opportunities. See EEO law, Affirmative Action, and Affirmative Action Plan/Affirmative Employment Plan.
Equal Employment Opportunity Laws — Six laws which prohibit discrimination on the basis of race, color, religion, sex, national origin, genetics, physical handicap and mental handicap in any terms, conditions, or privileges of employment. The six EEO laws are: The Equal Pay Act of 1963, as amended. Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 and the Pregnancy Disability Act of 1978. The Rehabilitation Act of 1973, as amended. The Age Discrimination in Employment Act of 1967, as amended. The Civil Rights Act of 1991. Genetic Information Nondiscrimination Act of 2008.
Job Related — Essential to job performance. The knowledge, skills, abilities, and experience necessary to perform a particular job. Tests are job related if they test whether an applicant or employee can perform the job in question. A rule or practice is job related if it is necessary for the safe and efficient performance of a particular job. For example, a rule prohibiting employees from wearing loose, flowing clothing around high speed rotating equipment is job related. However, the same rule applied in an office with no rotating equipment is not job related, and may have a disparate impact on some ethnic minorities.
Labor Force / Labor Market — Labor Force describes all civilians who are at least 16 years old and are employed or looking for work. The labor market is a group within the labor force whose members could fill a particular job. To be considered part of the labor market for a GS-5 clerical position, for instance, an individual must meet all minimum job-related requirements for that grade and classification. For most jobs, employers can find enough applicants in the local labor market. For jobs that have high minimum qualifications, employers may need to tap the national labor market to find enough applicants.
Merit Principles — The rules established by the Office of Personnel Management that the federal government follows in hiring, promoting, and all terms and conditions of employment. One of those rules states that the selection and advancement shall be made on the basis of an applicant's or employee's ability, knowledge, and skills in fair and open competition.
Minority — The smaller part of a group. A group within a country or state that differs in race, religion or national origin from the dominant group. According to EEOC guidelines, minority is used to mean four particular groups who share a race, color or national origin.
These groups are: American Indian or Alaskan Native, Asian or Pacific Islander, Black (except Hispanic), Hispanic/Latin, and the many people with origins in Europe, North Africa, or the Middle East make up the dominant white population. It should be noted that women are not classified as a minority. However, they are considered as having "minority status" as far as the law is concerned.
Numerical Goal — A target number of qualified women and minorities hired and advanced within a given period of time through an Affirmative Action Program. A numerical goal is not a quota, as it may not be reached within the time frame. It does not permit the hiring or advancement of unqualified employees. Numerical goals provide a standard which allows an activity to measure the effectiveness of its Affirmative Action Program. When numerical goals are reached, the percent of women and minority group members working at appropriate grade levels and classifications will be closer to their percentage in the labor market.
Prima Facie — This Latin term translates as "on first view", or "at first appearance". In EEO cases, complainants present evidence and arguments to support a claim of discrimination. If those arguments cannot be rebutted with additional evidence, the claim will be supported by the court within further argument. Thus, a prima facie case is established. In the EEO area, statistics of under utilization have been sufficient to make a prima facie case for discrimination.
Protected Class — The groups protected from the employment discrimination by law. These groups include men and women on the basis of sex; any group which shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps. Every U.S. citizen is a member of some protected class, and is entitled to the benefits of EEO law. However, the EEO laws were passed to correct a history of unfavorable treatment of women and minority group members.
Quota — Fixed hiring and promotion rates based on race, sex, or other protected class standards which must be met at all costs. In extreme cases, the courts have assigned quotas to some employers who have continued to practice illegal discrimination. The agency or any other employer cannot use quotas to meet their affirmative action goals unless a court orders it. Quotas are considered discriminatory against males and other non minority people.
Reasonable Accommodation — Adjustments and changes an employer must make in the work schedule or work environment to meet the needs of his employees. These changes could be made to allow a handicapped worker to perform his or her job. Widening doorways, installing access ramps, and lowering work tables are all considered reasonable accommodations for handicapped workers. Schedule changes that allow employees time off for religious observances are also reasonable accommodations. Adjustments or changes are considered reasonable, if they do not have a bad effect on work flow or production.
Under Represented — Inadequately represented in the work force of a particular activity. This term is used to describe the extent to which women and minorities are represented in particular grade levels and job categories. The percentage of women and minorities in the labor market is used as a standard to determine under representation. For example, suppose there are 100 GS-12's at an agency; three of them or 3% are black. However, the black labor market for GS-12 positions at that particular activity is 15%. In this case, blacks are under represented at the GS -12 level.
Under Utilized — To use less than fully; below potential use. This term is often applied to categories of employees who are working at jobs that do not make use of their skills and abilities, although they may have been hired for those skills and abilities. When an employee is consistently assigned to "dead end" jobs, he or she may be under utilized because they are often seen as able to perform only limited tasks.
