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Fiscal Year 2013 No FEAR Act Annual Report to Congress

U.S. Department of Health and Human Services

Office of the Secretary

March 25, 2014

Table of Contents  


Overview

The mission of the U.S. Department of Health and Human Services (HHS) is to enhance the health and wellbeing of Americans by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services. HHS accomplishes its mission through several hundred programs and initiatives which cover a wide spectrum of activities, serving the American public at every stage of life.

HHS conducts periodic self-assessments of its Equal Employment Opportunity (EEO) programs against six essential elements identified as standards for a model EEO program by the Equal Employment Opportunity Commission (EEOC). Seven (7) EEO offices provide an array of services, including programs to proactively prevent unlawful discrimination, to the following Operating Divisions nationwide:

  • Administration for Children and Families (ACF)
  • Administration on Community Living (ACL)
  • Agency for Healthcare Research and Quality (AHRQ)
  • Centers for Disease Control and Prevention & Agency for Toxic Substances and Disease Registry (CDC\ATSDR)
  • Centers for Medicare and Medicaid Services (CMS)
  • Food and Drug Administration (FDA)
  • Health Resources and Services Administration (HRSA)
  • Indian Health Services (IHS)
  • National Institute of Health (NIH)
  • Office of the Secretary (OS)
  • Substance Abuse and Mental Health Services Administration (SAMHSA)

To maximize effectiveness, HHS seeks to achieve exemplary EEO programs and lead as a model agency by eliminating discrimination, retaliation, or bias conduct within the workplace.

The No FEAR Act, Public Law 107-174, requires federal agencies to be publicly accountable for violations of Antidiscrimination and Whistleblower Protection laws. Federal agencies must post both quarterly and annual statistical data for federal sector EEO complaints on its public website, reimburse the Treasury Judgment Fund (Judgment Fund) for any payments made, and notify employees and applicants for employment about their rights under Antidiscrimination and Whistleblower Protection laws.

The No FEAR Act and its implementing regulations also require federal agencies to report annually on the following:

  • The number of Federal Court cases arising under the respective areas of law cited in the No FEAR Act where discrimination was alleged, the status or disposition of cases, and the amount required to be reimbursed to the Judgment Fund;
  • The number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to under the Act, and specific nature of the disciplinary action taken, separated by provisions of law;
  • The final year-end data on discrimination complaints for the fiscal year;
  • A detailed description of agency policy relating to appropriate disciplinary actions;
  • An analysis of trends, causation, and practical knowledge gained through experience;
  • Actions planned or taken to improve complaint or civil rights programs; and
  • Any adjustments to the budget.

Pursuant to congressional and statutory requirements, this report is being provided to the following:

  • Speaker of the U.S. House of Representatives
  • President Pro Tempore of the U.S. Senate
  • Committee on Governmental Affairs, U.S. Senate
  • Committee on Government Reform, U.S. House of Representatives
  • Each Committee of Congress with jurisdiction relating to the agency
  • Chair, Equal Employment Opportunity Commission
  • Attorney General
  • Director, U.S. Office of Personnel Management

The achievements during Fiscal Year (FY) 2013 have paved the way for meaningful and measureable improvements in HHS’s EEO and Diversity programs during FY 2013. We look forward to continuing to provide information on the successes of these programs in future reports

Wilfredo Sauri

U.S. Department of Health and Human Services
Office of Human Resources
200 Independence Avenue, SW
Room 308E
Washington, DC 20201

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Executive Summary

The No FEAR Act aims to reduce the incidents of workplace discrimination within the federal government by holding agencies and departments accountable for their actions. Section 203 of the No FEAR Act and the Office of Personnel Management (OPM) regulations implementing Title II of the No FEAR Act require each federal agency to prepare and submit an annual report. Accordingly, this report covers information for FY 2013.

During FY 2013, HHS received 398 EEO complaints. This represents a four percent reduction in complaint activity compared to the number of complaints filed in FY 2012. The most frequent bases of discrimination, in descending order, were: (1) reprisal, (2) race, (3) sex, (4) age, and (5) disability. Simultaneously, the most frequent issues raised, in descending order, were: (1) harassment (non-sexual), (2) assignment of duties, (2) evaluation appraisal, (3) promotion and non-selection, (4) terms and conditions of employment, and (5) reasonable accommodation was tied with time and attendance.

HHS’s complaint activity consistently declined from FY 2011 through FY 2013. The number of complaints filed decreased seven percent while the number of individuals filing complaints decreased six percent. In FY 2013, HHS reported 23 Federal Court cases pending and 14 Federal Court cases filed. During FY 2013, eight cases were resolved under various laws in the No FEAR Act. Among the cases resolved, four were dismissed in favor of HHS and four were settled. The average investigation time was less than the regulatory timeframe.

In FY 2013, HHS reimbursed the Judgment Fund $300,000 for three Federal Court cases. While four cases were settled, only three cases resulted in monetary awards. HHS did not discipline any employees involved in FY 2013 Federal Court cases. Additionally, HHS did not discipline any employee for violating its policies for discrimination, retaliation, harassment, and/or other violations of the Antidiscrimination and Whistleblower Protection laws included in the No FEAR Act, whether or not in connection with a Federal Court case.

HHS continues to place strong emphasis on No FEAR Act training. During FY 2013, 8,329 employees participated in No FEAR Act training. Additionally, 346 Commissioned Corps, 1,127 contractors, 222 Fellows, and 82 volunteers participated in No FEAR Act training.

Both the EEO Office and the Diversity and Inclusion Division assist HHS’s leadership in shaping policies to protect the personal liberties of all employees. These organizations work inter-dependently to develop policies and plans, generate reports, conduct annual multi-year studies, forecast trends, assess demographics against various arbiters, deliver training and briefings, conduct oversight, adjudicate EEO complaints, integrate civil rights and civil liberties into HHS’s initiatives and activities, and submit annual reports to internal and external customers, constituents, and stakeholders.

To foster continuous improvement, HHS fully engages the talents and competencies of employees through the formation of an HHS-wide Diversity and Inclusion Council, under the leadership of two Senior Executive Service Co-Chairs, appointed by the Secretary in support of Executive Order 13583. The Council is committed to identifying and adopting best practices to promote a diverse workforce, in an inclusive environment, and to identify and remove barriers to equal employment opportunities, consistent with merit system principles and applicable law.

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Data And Results

This report is prepared in accordance with Section 203(a)(1) of the No FEAR Act which requires federal agencies to include in their annual report to Congress “the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on the part of such agency was alleged.” OPM’s final regulations at 5 CFR 724.302 on reporting and best practices, issued on December 28, 2006, clarify Section 203(a)(1) of the No FEAR Act stating that federal agencies report on “the number of cases in Federal Court [district or appellate] pending or resolved … arising under each of the respective provisions of the Federal Antidiscrimination and Whistleblower Protection laws applicable to them … in which an employee, former federal employee, or applicant, alleged a violation(s) of these laws, separating data by the provision(s) of law involved.”  

Complaint Activity and Disposition

During FY 2013, HHS reported 23 Federal Court cases ensuing from Antidiscrimination statutes listed in the No FEAR Act. Among the eight resolved cases, four were settled and four were dismissed in favor of HHS.

Judgment Fund Reimbursements and Budget Adjustments

Among the eight Federal Court cases resolved, three settlements resulted in reimbursement to the Judgment Fund in FY 2013 for $300,000. One case was settled without any monetary award. Three cases totaled $300,000 in monetary awards for three settlements (see Appendix 1).

Section 203 (a)(8) of the No FEAR Act requires that agencies include in their annual report to Congress information about “any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201.” Section 201 requires federal agencies to pay awards for discrimination and retaliation violations out of their own budgets. They are required to reimburse the Judgment Fund within a reasonable time of any such award. HHS made no such adjustments to its budget for FY 2013.

Disciplinary Actions

Section 203(a)(4) of the No FEAR Act requires that agencies include in the annual report to Congress “the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1).” For Federal Court cases involving allegations of a violation of Antidiscrimination or Whistleblower Protection laws, 5 CFR 724.302 (a)(3) requires the agency to report the number of employees disciplined. The 5 CFR 724.102 defines discipline to include any one, or a combination, of the following actions: reprimand, suspension without pay, reduction in grade or pay, or removal.

HHS did not discipline any employees involved in FY 2013 Federal Court cases. Additionally, HHS did not discipline any employee for violating its policies for discrimination, retaliation, harassment, and/or other violations of the Antidiscrimination and Whistleblower Protection laws included in the No FEAR Act, whether or not in connection with a Federal Court case. Further, HHS did not issue any letters of reprimand nor remove nor suspend any employees from federal service (see Appendix 1).

Section 203 (a)(6) of the No FEAR Act requires that federal agencies include in their annual report to Congress a detailed description of the policy implemented by the agency relating to disciplinary actions imposed against a federal employee who discriminates against any individual in violation of any of the laws cited under section 201(a)(1) or (2), or who committed another prohibited personnel practice which was revealed in the investigation of a complaint claiming a violation of any of the laws cited under section 201(a)(1) or (2).

On April 28, 2009, the U.S. Senate confirmed Kathleen Sebelius as HHS’s Secretary. On September 17, 2009, Secretary Sebelius issued her first EEO policy statement, her revised EEO policy statement on March 14, 2011, and then her updated EEO policies on November 9, 2012. These policies were issued to: (1) cover all forms of harassment, (2) require immediate and appropriate corrective action, (3) provide points of contact for reporting and filing a complaint, (4) define necessary legal terms, (5) require training for the workforce, and (6) protect employees from retaliation. These statements have been posted on employee bulletin boards and on HHS’s intranet and its public websites. Other HHS policies require all employees to cooperate in EEO investigations. These policies also require the agency to take appropriate disciplinary action against those engaging in unlawful discriminatory practices or allowing discriminatory practices to exist (see Appendix 3). 

Trend Analysis for EEO Complaint Data

Year-end summary data for FY 2013 EEO complaint activity is included in Appendix 2. This section presents a three-year (FY 2011 to FY 2013) trend analysis for EEO complaint data, pursuant to the No FEAR Act, Section 1614.704. Overall, the data shows a downward trend in complaint activity.  

Complaint Activity

During FY 2013, 385 individuals filed 398 complaints. There were 14 repeated filers who filed two or more complaints.

HHS’s complaint activity consistently declined from FY 2011 through FY 2013. The number of complaints filed decreased seven percent while the number of individuals filing complaints decreased six percent. There were no significant changes regarding the number of repeated filers during the three-year period. The number of individuals who filed two or more complaints fluctuated from 16 in FY 2011, to 10 in FY 2012, to 14 in FY 2013. This represents a 38 percent decrease in the number of repeated filers during reporting period FY 2011 to FY 2012. Conversely, this represents a 40 percent increase in the number of repeated filers from FY 2012 to FY 2013.  

Complaints by Bases and Issues

The most frequent bases of discrimination, in descending order, during FY 2013, were: (1) reprisal, (2) race, (3) sex, (4) age, and (5) disability. The number of complaints claiming the top four (4) bases of discrimination fluctuated during the three-year period. In contrast, the number of complaints alleging disability as a basis steadily increased to 20 percent over the three-year period.

The most frequent issues raised in complaints, in descending order, during FY 2013, were: (1) harassment (non-sexual), (2) assignment of duties was tied with evaluation appraisal, (3) promotion and non-selection, (4) terms and conditions of employment, and (5) reasonable accommodation was tied with time and attendance.

In summary, the bases and issues cited above have remained as the top five for the three-year period, except for the issue of reasonable accommodation. Reasonable accommodation ranked within the top five issues in FY 2013.  

Processing Time

The average investigation time was less than the regulatory timeframe under 29 CFR 1614. The average investigation time where a hearing was requested was higher than the average investigation time where a hearing was not requested. Overall, no major differences in the average investigation time were reported during the three-year period.

The average time for final action was greater than the regulatory timeframe. Specifically, the average time for final action where a hearing was not requested was considerably greater than the regulatory timeframe. Conversely, the average time for final action where a hearing was requested was less than the regulatory timeframe, except in FY 2012. 

Final Actions Finding Discrimination

In FY 2013, HHS issued four final actions finding discrimination. Two of the four final agency actions finding discrimination were without a hearing and two were with a hearing. The bases of discrimination were race, reprisal, sex, and disability. The issues were harassment (non-sexual) and termination. FY 2011 shows two final agency actions finding discrimination.  

Pending Complaints

The data reveals an increasing trend in pending complaints at the beginning of all three fiscal years. At the beginning of FY 2011, 474 complaints were pending; 506 complaints were pending at the beginning of FY 2012; and 509 complaints were pending at the beginning of FY 2013. In FY 2013, pending complaints were at various stages of the EEO process. For example, focusing on just hearings and appeals, there were 238 pending complaints at the hearing stage and 133 pending complaints in appeal to the EEOC. 

Complaint Investigations

In the three-year period, the number of pending complaints where the investigation time exceeded the required timeframe progressively increased from nine in FY 2011, to 16 in FY 2012, to 28 in FY 2013. This represents an overall increase of 19 pending complaints where the investigation time exceeded the regulatory timeframe. 

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No Fear Act Training

Section 202(c) of the No FEAR Act requires federal agencies to provide training for employees on the rights and remedies under Antidiscrimination or Whistleblower Protection laws. Under 5 CFR 724.203, federal agencies were required to develop a written training plan and to have trained their employees by December 17, 2006, and every two years thereafter. Under implementing regulations, new employees are to receive No FEAR Act training within 90 days of appointment through either an agency’s orientation program or some other No FEAR Act training program.

HHS provides No FEAR Act training to new hires during new-hire orientation programs. Further, HHS requires employees to complete No FEAR Act training every two years. No FEAR Act training is available through the HHS Learning Portal. The Portal is HHS’s primary electronic platform to capture training data. During FY 2013, 8,329 employees participated in No FEAR Act training. Additionally, 346 Commissioned Corps, 1,127 contractors, 222 Fellows, and 82 volunteers participated in training during FY 2013. HHS continues to place strong emphasis on No FEAR Act training and will report the results in the 2014 No FEAR Annual Report.  

Practical Knowledge Gained Through Experience And Actions Planned Or Taken To Improve Complaint Or Civil Rights Programs

To maximize effectiveness, HHS seeks to have exemplary EEO and Diversity programs. The EEO Office along with the Diversity and Inclusion Division reside within the Office of the Secretary to provide technical and policy advice to HHS’s leadership on civil rights and civil liberties issues. Both the EEO Office and the Diversity and Inclusion Division assist HHS’s leadership in shaping policies to protect the personal liberties of all employees. These organizations work inter-dependently to develop policies and plans, generate reports, conduct annual multi-year studies, forecast trends, assess demographics against various arbiters, deliver training and briefings, conduct oversight, adjudicate EEO complaints, integrate civil rights and civil liberties into HHS’s initiatives and activities, and submit annual reports to internal and external customers, constituents, and stakeholders.

HHS’s EEO leadership ensures collaboration with EEO Offices of the Operating Divisions, nationwide, to help increase employees’ awareness of their responsibilities in EEO program activities and Diversity Management. In FY 2013, HHS conducted EEO Compliance Reviews and participated in outreach events in addition to reviewing civil rights records, public notifications, and plans of work for meeting affirmative employment objectives and initiatives. HHS continues to obtain critical information, through such sources as its annual Employee Viewpoint Survey, to assess the state of EEO and Diversity Management throughout the organization.

Since FY 2006, HHS has successfully established and deployed a complaint tracking system (iComplaints) to monitor all incoming inquiries. This is a web-based application for processing, managing, and reporting on EEO complaints. The automated system allows HHS to track complaint status to ensure responsiveness and legal compliance. The system also allows HHS EEO practitioners to retrieve data and generate reports, including No FEAR Act data and the EEOC 462 Report. Additionally, HHS implemented a 462 Quarterly Reporting system as a strategy to review and assess the EEO complaint process throughout the year. Through this ongoing reporting and auditing process, HHS’s EEO Offices are encouraged to analyze their data and gain knowledge to make determinations on how to best address shortcomings on EEO data and the compliance and timeliness of EEO activity.

HHS will continue to develop and implement improvements in the recruitment, hiring, retention, and development of under-represented classes of people in the workforce, such as veterans and people with disabilities. HHS continues to participate in various career fairs to increase recruitment and hiring of under-represented and under-served communities. HHS continues critical work to educate and support employees on the legal and operational issues regarding the President’s Domestic Partnership Initiative, and the expanding benefits available for domestic partners.

HHS has a cornerstone responsibility for promoting the welfare and wellbeing of all Americans. The deference and dignity with which HHS treats employees are critical to the successful completion of the mission. To foster continuous improvement, HHS fully engages the talents and competencies of employees through the formation of an HHS-wide Diversity and Inclusion Council, under the leadership of two Senior Executive Service Co-Chairs, appointed by the Secretary in support of Executive Order 13583. The purpose of the Council is to develop and implement a more comprehensive and integrated Diversity and Inclusion Strategic Plan. The Council is committed to identifying and adopting best practices to promote a diverse workforce, in an inclusive environment, and to identify and remove barriers to equal employment opportunities, consistent with merit system principles and applicable laws.

During New Employee Orientations, employees are introduced to HHS’s non-discrimination policies by an HHS EEO Operations specialist. The specialist discusses EEO and Diversity awareness, reasonable accommodation, and the required No FEAR Act training. The EEO Policy statement and the Non-Discrimination Policy statement are available on HHS’s website and are provided to new employees during orientation. Additionally, information regarding the EEO program, administrative and judicial processes, and reasonable accommodation procedures are available to employees on the HHS website. During FY 2013, all contract EEO Counselors and Investigators received the required eight-hour refresher training.

HHS recognizes the critical role that training plays in raising awareness and fostering behaviors. In addition to the No FEAR Act training, HHS offers employees and managers training courses on the prevention of harassment in the workplace and on labor relations. 

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Conclusion

HHS’s meaningful and measurable successes spelled out in this report are due to the No FEAR Act and to the Secretary’s strong and clear policy statements on workplace discrimination, harassment, whistleblower rights, and the No FEAR Act training. Nonetheless, there are still opportunities for advancement which HHS will continue to capture and report on as part of its commitment to abide by and support merit systems principles, and to provide protection from prohibited personnel practices for all employees under the law.


Content created by Assist. Sec./Administration
Content last reviewed on June 13, 2014