OPM issues long-awaited anti-discrimination regulations

The Office of Personnel Management on Thursday issued preliminary instructions for implementing a key provision in a law designed to hold agencies more accountable for discrimination in the federal workplace.

Several supporters of the Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act said they are upset that OPM waited so long to publish draft regulations that are relatively narrow in scope. President Bush signed the legislation in May 2002 and the law took effect on Oct. 1, 2003.

The draft regulations, posted in a Jan. 22 Federal Register notice are "outrageously anemic and woefully inadequate to address serious and sometimes life-threatening" instances of discrimination in federal offices, said Marsha Coleman-Adebayo, the senior Environmental Protection Agency policy analyst who shepherded No FEAR into law.

OPM officials will respond to these and other criticisms in a Friday morning press conference, an agency spokesman said.

No FEAR requires federal agencies to use their own funds, rather than a general Treasury Department fund, to settle discrimination and whistleblower lawsuits. The law also contains reporting requirements, and asks agencies to discipline managers found guilty of discrimination or retaliation.

"If we expect government operations and performance to improve, we must ensure that employees feel comfortable to raise critical issues without fear of inappropriate reactions," said OPM Director Kay Coles James.

The draft guidelines released by OPM on Thursday establish procedures for paying discrimination and whistleblower settlements. Under the preliminary guidelines, Treasury will still pay initial settlements from the general fund, but agencies will need to reimburse--or make arrangements to reimburse--the fund within 45 business days.

Treasury's Financial Management Service will notify agencies when they have to reimburse the fund, and will post the names of agencies that fail to do so within the 45-day time frame. Under the proposed regulations, agencies will be liable for any settlements reached on or after Oct. 1, 2003.

OPM also is responsible for issuing regulations on some of No FEAR's reporting requirements, and must implement the law's training and disciplinary provisions. Coleman-Adebayo said she is disappointed that OPM has yet to publish those guidelines and has decided to handle them separately.

"The real meat of No FEAR is the accountability issue," Coleman-Adebayo said. Required reimbursement of the general fund is only one accountability mechanism in the law. The disciplinary requirements for managers engaging in discrimination are equally, if not more, important, she said.

No FEAR's reimbursement provisions alone will not provide agencies with adequate incentive to end discrimination because "$300,000 for most agencies is not a national crisis," she explained.

But Jorge Ponce, co-chair of the Council of Federal EEO and Civil Rights Executives, said he is "very pleased that OPM finally came out with a portion of its No FEAR regulations." The reimbursement requirements are one of No FEAR's most important components, he said. "Agencies will now settle complaints at the early stages of the process, simply because if they don't settle and they lose in federal court, they will have to pay out of appropriated funds," he predicted.

OPM's draft regulations are not perfect though, Ponce cautioned. The guidelines should include safeguards to ensure that agency managers don't retaliate against the employees settling discrimination cases. If agencies lack the money to pay settlements, managers might be more tempted to punish the workers bringing the cases, he said.

Unless there is a stiffer punishment for failing to reimburse the judgment fund, agencies will have little motivation to comply with No FEAR, said Gregory Reeves, president of Blacks in Government. "As a minimum, the FMS should be required to report the agencies [violating the law] to Congress, the Equal Employment Opportunity Commission and OPM," he said.

Leroy Warren, chairman of the National Association for the Advancement of Colored People's Federal Sector Task Force, echoed concerns about the enforcement of No FEAR, and added that he is upset that OPM took so long to issue regulations. OPM and other agencies in charge of implementing No FEAR could "gut the law administratively," he said.

More No FEAR regulations are due from OPM, the EEOC and the Justice Department in the coming months, and some may arrive in the next few days.

Comments on OPM's Jan. 22 draft guidelines are due by March 22, and can be sent via e-mail to NoFEAR@opm.gov or via fax (202) 606-0967. Written comments can be mailed to: