Breakdown of the Key Changes in the Cummings Antidiscrimination Act

Replaces paragraph (4) to state that: "accountability in the enforcement of the rights of Federal employees is furthered when Federal agencies agree to take appropriate disciplinary action against Federal employees who are found to have intentionally committed discriminatory (including retaliatory) acts."

Paragraph (4) previously stated that accountability in the enforcement of employee rights is not furthered by terminating the employment or benefits of other employees.

Adds a new subsection (d) that requires agencies to publicly post notice of findings of discrimination (including retaliation).

Within 90 days of a final agency action, EEOC decision, or court judgment involving a discrimination finding, an agency must post a notice of the decision on its public internet website, in a clear and prominent location linked directly from the home page of the website.

The notice must state that a discrimination finding was made, and identify the date the finding was made, the date on which each discriminatory act occurred, and the law violated by each discriminatory act.

The notice must remain posted for at least one year.

Adds a new subsection (c) that requires agencies to submit a disciplinary action report to the EEOC stating whether disciplinary action has been proposed against an employee who has committed a discriminatory act.

The report must be submitted within 120 days of the agency's final action or the agency's receipt of an EEOC final decision involving a discrimination finding.

The report must include the reasons for any proposed disciplinary action.

Adds a new Sec. 207 that requires agencies to establish a system to track each discrimination complaint made under 5 USC 2302 (B)(1) and adjudicated through the EEO process.

The system must be established by Jan. 1, 2022 (one year after the enactment of the Cummings Antidiscrimination Act).

The system must track the complaint from filing with the agency to resolution, including whether a decision has been made regarding disciplinary action resulting from any discrimination finding.

Adds a new Sec. 208 that requires agencies to include a notation of the adverse action and the reason for the action in the employee's personnel record if the agency takes an adverse action under 5 USC 7512 against an employee for a discriminatory act.

The notation is to be made after all appeals related to the action have been exhausted.

Adds to the No FEAR Act a new Title IV -- Processing and Referral.

Adds Sec. 401 on the processing and resolution of complaints.

Agencies must establish a model EEO Program that is not under the control of the agency's Office of Human Capital or Office of the General Counsel (or the equivalent).

The EEO Program must be devoid of internal conflicts of interest and ensure fairness and inclusiveness within the agency.

The EEO Program also must ensure the efficient and fair resolution of discrimination complaints.

Adds Sec. 402 which provides that nothing in the new Title IV prevents an agency or a subcomponent, or the Department of Justice, from providing advice or counsel to employees in the resolution of a complaint.

Adds Sec. 403 which provides that each agency's EEO Program reports directly to the head of the agency.

• Adds Sec. 404 which authorizes the EEOC to refer discrimination findings to the Office of Special Counsel if it determines that the agency did not take appropriate action with respect to the finding in the report required by Sec. 203(c).

The EEOC must refer the matter to OSC within 30 days of receiving the report.

The EEOC must notify the agency if it refers a matter to OSC.

In each fiscal year's Annual Report of the Federal Workforce, the EEOC must include the number of referrals made to OSC that year and a brief summary of each referral.

OSC must accept and review each referral for purposes of pursuing disciplinary action against the employee who committed a discriminatory act.

OSC must notify the EEOC and the agency when it pursues disciplinary action and the agency imposes disciplinary action.

An agency may not take disciplinary action against the employee once the EEOC has referred the matter, except in accordance with 5 USC 1214 (f), which requires the agency to seek approval from OSC.