OPM To Publish Rule Implementing Law Protecting Feds from Discrimination, Whistleblower Retaliation

The Office of Personnel Management is set to publish regulations implementing a 2021 law aimed at improving agency accountability for acts of discrimination and whistleblower retaliation against federal workers.

The Elijah E. Cummings Federal Employee Antidiscrimination Act, named for the late lawmaker who led the House Oversight and Reform Committee and signed on Jan. 1, 2021, encourages agencies to take action against federal employees who are found to be responsible for “intentional” acts of discrimination or retaliation, and be more transparent with the public when such incidents are adjudicated.

In a proposed rule set to be published to the Federal Register Thursday, OPM said that agencies will be expected to post a notification on their public-facing websites within 90 days of the finalization of any case in which the agency was found to have discriminated or retaliated against a federal employee.

In this case, finalization refers to instances when the agency has exhausted its appeals, the deadline to appeal a ruling has expired, or if a court has issued a final judgment in the case. Agencies must also issue public notifications whenever they undertake an adverse personnel action against a federal worker who has been found to have “intentionally committed discriminatory (including retaliatory) acts.”

Additionally, the regulations would require agencies to submit a report to the Equal Employment Opportunity Commission within 120 days of taking final action—or receiving a final decision from the EEOC—regarding any adverse actions taken against the employees responsible for the discrimination or retaliation or lack thereof.

Agencies also must develop a system to track all pending discrimination or retaliation complaints by the beginning of 2022.

“Not later than Jan. 1, 2022, each federal agency must establish or leverage an existing system to track each complaint of discrimination . . . adjudicated through the Equal Employment Opportunity process from the filing of a complaint with the federal agency to resolution of the complaint,” OPM wrote. “In a case where there was a finding of intentionally committed discriminatory (including retaliatory) acts, the agency would also need to track whether a decision has been made regarding any follow-up disciplinary action, and what decision was reached.”

Finally, the regulations require agencies to provide training to all employees, including supervisors and managers, about their rights under federal sector antidiscrimination and whistleblower protection laws. Specifically, agencies that do not already have a new employee orientation program outlining employees’ rights must train new workers within 90 calendar days of their hiring. Additionally, agencies must conduct refresher training on employees’ antidiscrimination and retaliation rights every two years.

The proposed rule will be subject to public comment between now and Feb. 4.