Paralyzed With No Fear

t's been more than a year since President Bush signed the Notification of Federal Employees Anti-Discrimination and Retaliation Act, or No FEAR, on May 15, 2002. The law, which requires agencies to pay for discrimination and whistleblower settlements and judgments from their own budgets, is the first major civil rights bill of the new millennium.

No FEAR contains reporting requirements designed to expose any pattern of misconduct at agencies and their actions to address it. The law requires agencies to notify employees and managers of their rights and responsibilities and strengthens protections for whistleblowers.

Working under the umbrella of the No FEAR Coalition, hundreds of federal employees and organizations worked tirelessly for the bipartisan support and passage of the legislation. Despite the odds, both the House and Senate approved the bill unanimously. On the heels of No FEAR is the 2003 Civil Rights Tax Relief Act, designed to eliminate the taxation of emotional distress awards and attorneys fees from personal income.

STANDING STILL

No FEAR goes into effect in two months-on Oct. 1. But where are the regulations?

It appears that agencies have done nothing to develop No FEAR regulations or to plan systems for reporting data to Congress. Out of 15 agencies contacted this spring about their plans to implement No FEAR, few responded.

Agriculture officials said they didn't expect any change in the way the agency litigates or settles equal employment opportunity complaints. At Interior, officials said they hadn't assessed the impact of No FEAR because they are awaiting guidance from the Office of Personnel Management, Justice Department and Equal Employment Opportunity Commission.

There could be a number of reasons for the general foot-dragging and bureaucratic lethargy in addressing No FEAR:

• A general lack of understanding and support of the No FEAR Act among agencies.
• A tendency to leave it to OPM and OMB to define regulations and procedures for the executive branch.
• A wait-and-see approach to determine what enforcement mechanisms will be used to uphold the law and what the penalties will be for noncompliance, if any.
• A general hope that the law will drop off the government's radar screen

Federal agencies are likely to continue waiting for No FEAR regulations, at least for a while.

GREAT EXPECTATIONS

Reactions range from cynical to idealistic among organizations, coalitions and people that have a tremendous stake in the outcome of No FEAR. Given the mixed results of the 1964 Civil Rights Act, some believe people and organizations are incapable of change.

"The track record at the U.S. Department of Agriculture and other federal agencies regarding discrimination is poor and will continue to be until the lethargy of the bureaucracy is shocked and challenged," says Rudy Arredondo, president of the Hispanic Organizations Leadership Alliance. "The joke at USDA is that if you discriminate, you get promoted. The challenge of No FEAR will be to turn that around."

Lawrence Lucas, president of USDA's Coalition of Minority Employees, says it will take some time before No FEAR will make a difference. "We have an antebellum system that took decades to put together and won't be dismantled in a year," says Lucas. "Since the federal system is entrenched with bigots, racists, predators and poor managers, it's not going to change overnight."

The No FEAR Act is a response to the way agencies handle discrimination cases, says Janet Cooper, president of Federally Employed Women's Legal and Education Fund. Instead of just settling cases, agencies had every incentive to push their discrimination cases up to the Justice Department because they didn't have to pay the cost of litigation, settlements and verdicts. Justice even provided attorneys at taxpayer expense to defend agency actions and protect managers.

Cooper says now it will be harder to settle in court. Before No FEAR, the U.S. Attorney's Office had strong control of negotiations and settlements, which came out of its budget. Now that funds come from agency budgets, they will want to control negotiations. Frugality could set in since the law of averages works in favor of agencies. For every court verdict made against a federal agency, hundreds and thousands of litigants fall by the wayside-victims of attrition due to financial, emotional or mental hardship. Some just give up, while others may quit or retire. A few even die along the way.

When taxpayer funds are used to defend discriminating agencies, incentives are misplaced. "When no 'Monopoly' money is involved, cases get settled on merit," Cooper says.

NOT READY

When No FEAR kicks in, it appears federal accountants won't have accounting codes to track discrimination costs, EEO counselors won't know what to do or how to handle new cases, and agency budget officers won't be budgeting contingency funds to cover No FEAR requirements. It's unclear whether departments will be tracking data on discriminating officials and actions for reports to Congress. And if so, what standards and definitions would they use?

Victims of discrimination and whistleblowers have awaited proposed regulations from the administration for more than a year. Regulations require a one-month public comment period, but as of July, guidance had yet to be issued on No FEAR. Activists involved in the struggle for the passage of No FEAR are concerned about the future of the law and whether agencies intend to enforce it.

Some wonder whether the law will suffer the same fate as the 1964 Civil Rights Act, which many argue has lost its edge. As a result, the No FEAR Institute was established to ensure that citizens play an active role in oversight and implementation.

A number of things must happen:

• No FEAR must be funded.
• Standard definitions for required data must be in place to prevent creative interpretations.
• Oversight requires a central coordinator for implementation and enforcement.
• Penalties for noncompliance must exist and be uniformly administered.
• Discriminating managers named in complaints must be disciplined or fired.
• Congress must provide oversight and review of federal agencies.