Anti-discrimination law may be hard to enforce

If history is any indication, the Treasury Department will have difficulty enforcing a key provision of a law designed to hold federal agencies accountable for discrimination and retaliation against employees.

The Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act requires agencies to use their own funds, rather than a general Treasury account, to settle discrimination and whistleblower lawsuits. The law, which took effect in October 2003, is intended to provide agencies with a strong incentive to curb employment discrimination.

But Treasury may have trouble collecting money from agencies, according to a new General Accounting Office report (GAO-04-481). GAO based its prediction on agencies' low rate of compliance with a 26-year-old law that has a similar requirement: the 1978 Contract Disputes Act.

That finding is troubling to Marsha Coleman-Adebayo, the Environmental Protection Agency policy analyst who shepherded No FEAR into law. "No FEAR is all about consequences," she said.

Under the Office of Personnel Management's draft guidelines on implementing No FEAR, Treasury has continued to pay initial settlements from the general fund, but agencies must pay Treasury back, or make arrangements to pay, within 45 business days. Each year, Treasury's Financial Management Service must publish on the Internet the names of agencies that are out of compliance.

But Treasury officials have no power to collect from disobedient agencies. The 45-day limit suggested by OPM is not a hard-and-fast deadline. Agencies can ask for extensions if they claim that they cannot afford to reimburse the general fund without dipping into money needed to fulfill their other responsibilities.

The Contract Disputes Act has a similar reimbursement requirement, except Treasury does not post the names of offending agencies. In the past three years, agencies paid Treasury back only one of every five dollars they owed under that law, GAO found. At least 18 agencies still had outstanding debts to the general fund in each of the last three fiscal years. Most commonly, agencies claimed they could not afford to pay without adversely affecting mission-critical work.

"According to Treasury, while its No FEAR Act collection efforts are just beginning, reimbursement rates under the act may be as low as under [the Contract Disputes Act] because the No FEAR Act, like CDA, does not impose reimbursement deadlines on agencies, and Treasury has very little authority to enforce reimbursement," GAO said in the report.

Coleman-Adebayo and lawmakers considered this potential problem while drafting the legislation. "I suppose we hoped that agencies would do the right thing," Coleman-Adebayo said. But she added that members of Congress pledged to address the problem if a "clear pattern of misconduct" emerged.

Loopholes in the current law should be addressed through "congressional or regulatory action," Coleman-Adebayo said. "The specter is that right now, if things continue the way they're going, we're not going to get compliance."

Rep. Sheila Jackson Lee, D-Texas, who introduced No FEAR along with Rep. James Sensenbrenner, R-Wis., said she will watch to ensure that agencies do not abuse the law. She will keep an eye out for agencies that are "misrepresenting the idea that they can't [pay]."

The provision allowing deferment is meant as a "simple proposition of fairness," Jackson Lee said. "We certainly wanted agency missions to go forward."

When agencies fail to comply, the Bush administration should use the "bully pulpit" to force reimbursement, Jackson Lee said. President Bush signed No FEAR, the first major civil rights legislation of this century, she added, and should help enforce the law. Lawmakers may also hold hearings to further investigate agencies owing money to Treasury's general fund, she said.

At the request of Coleman-Adebayo, OPM in late March extended the comment period for its No FEAR regulations by roughly a month, to April 26.