No FEAR Act Notice
On May 15, 2002, Congress enacted the Notification and Federal Employee Antidiscrimination and Retaliation Act (No FEAR Act). One purpose of the Act is to “require that federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws” (Public Law 107-174, Summary). In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination” (Public Law 107-174, Title I, General Provisions, section 101(1)).
On January 1, 2021, Congress enacted the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 (Cummings Act), which amends the No FEAR Act. The Cummings Act increases federal agencies’ accountability by requiring the following:
Establishment of an employment discrimination complaint tracking system;
Notation of any adverse action and the reason for the action in the employee’s personnel record, if an agency takes an adverse action under 5 U.S.C. §7512 against an employee for a discriminatory act;
Fair and impartial processing and resolution of employment discrimination complaints;
Establishment of a model Equal Employment Opportunity (EEO) Program that is not under the control of Human Resources or the Office of General Counsel;
That the head of the agency’s EEO Program reports directly to the head of the agency; and
The Equal Employment Opportunity Commission (EEOC) may refer discrimination findings to the Office of Special Counsel, if the EEOC determines that the agency did not take appropriate action with respect to the finding.
The No FEAR Act also requires that the FDIC provide this notice to inform employees, former employees, and applicants of the rights and protections that are available under federal antidiscrimination, whistleblower protection and anti-retaliation laws.
The FDIC cannot discriminate against an employee, former employee, or an applicant for employment with respect to the terms, conditions, or privileges of employment on account of any protected basis. This includes race, color, religion, sex (including pregnancy, equal pay, gender identity, and sexual orientation), national origin, disability (physical and/or mental), age (40 years or older), genetic information (information about an individual’s genetic tests; or information about the genetic tests, or the manifestation of a disease or disorder in the individual’s family members), marital status, or political affiliation. Discrimination on these bases is prohibited by one or more of the following statutes: 29 U.S.C. §206(d), 29 U.S.C. §631, 29 U.S.C. §633a, 29 U.S.C. §791, 42 U.S.C. §2000e-16, 42 U.S.C. §2000e(k), and 42 U.S.C. §2000ff. For a complete list of protected bases relevant to the EEO complaint process, please consult the FDIC’s Equal Opportunity Policy, Circular 2710.1.
If you believe you have been the victim of unlawful discrimination on the basis of race, color, religion, sex (including pregnancy, equal pay, gender identity, and sexual orientation), national origin, disability (physical and/or mental), or genetic information, you must initiate an informal EEO complaint before filing a formal complaint.(see 29 C.F.R. Part 1614 and FDIC Circular 2710.1). To initiate an informal EEO complaint, you must contact an EEO counselor in the FDIC’s Office of Minority and Women Inclusion (OMWI) within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action.
If you believe that you have been the victim of unlawful discrimination based on age (40 years or older), you must either contact an EEO counselor within 45 calendar days as noted above or give notice of intent to sue to the U.S. EEOC within 180 calendar days of the alleged discriminatory action. A notice of intent to sue must be provided not less than 30 days prior to the filing of a civil action.
For more information about protections from discrimination on the bases of race, color, religion, sex (including pregnancy, equal pay, gender identity, and sexual orientation), national origin, disability (physical and/or mental), age (40 years or older), or genetic information, or to initiate EEO counseling alleging discrimination on any of those bases, you may contact an EEO Counselor at email@example.com, or the Branch Chief, Equal Opportunity Compliance and Training Branch at firstname.lastname@example.org.
If you are alleging discrimination based on marital status or political affiliation, you may file a written complaint directly with the U.S. Office of Special Counsel (OSC) at 1730 M Street NW, Suite 218, Washington, DC 20036-4505 or online through the OSC website (https://osc.gov).
Alternatively, a bargaining unit employee may pursue a discrimination complaint, except a complaint alleging discrimination due to political activities, by filing a grievance under the FDIC-NTEU collective bargaining agreement.
If you believe that you have been the victim of harassment (including harassment not based on membership in a protected class), you may notify the FDIC’s Anti-Harassment Program Coordinator via email at Anti-Harassment@fdic.gov.
Whistleblower Protection Laws
A federal employee, including an FDIC employee, with authority to take, direct others to take, recommend, or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of protected whistleblowing activities. “Protected whistleblowing activities” includes any disclosure of information by an employee or applicant that the employee or applicant reasonably believes evidences any violation of any law, rule, or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. A disclosure of this type of information is protected unless the disclosure is prohibited by law, or an Executive Order requires it to be kept secret in the interest of national security or the conduct of foreign affairs. A federal employee may lawfully make a disclosure of information that is otherwise prohibited by law or required to be kept secret by Executive Order to Congress, the U.S. Office of Special Counsel (OSC), the Inspector General of the agency, or the employee designated by agency to receive such disclosures. These protections are consistent with and do not supersede, conflict with, or otherwise alter an employee’s obligations, rights, or liabilities created by existing statute or Executive Order relating to classified information, communication to Congress, reporting to OSC or the Inspector General, or any other whistleblower protection.
In addition, a federal employee, including an FDIC employee, with authority to take, direct others to take, recommend, or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because that employee or applicant exercised a complaint, grievance, or appeal right. Employees and applicants are also protected from retaliation for testifying for or lawfully assisting any individual with the exercise of a complaint, appeal or grievance right; cooperating with or disclosing information to the Inspector General or the OSC in accordance with the law; or refusing to obey an order that would require the individual to violate law, rule, or regulation.
Retaliation against an employee, former employee, or an applicant for employment for making a protected disclosure or exercising these rights is prohibited by 5 U.S.C. §2302(b)(8) and (9). Additionally, FDIC employees are protected from reprisal for whistleblowing activities under 12 U.S.C. §1831j. The Inspector General Act (5 U.S.C. Appendix 3, §7) prohibits reprisal against any employee for making a complaint or disclosing information to an Inspector General. If you believe that you have been a victim of whistleblower retaliation, you may file a written complaint (Form OSC-11) with the OSC at 1730 M Street NW, Suite 218, Washington, DC 20036-4505 or online through the OSC website (https://osc.gov). You may also contact the FDIC Whistleblower Protection Coordinator (see instructions www.fdicoig.gov/oig-hotline).
Retaliation for Engaging in Protected Activity
A federal agency, including the FDIC, cannot retaliate against an employee, former employee, or an applicant for employment because that individual exercises his or her rights under any of the federal antidiscrimination or whistleblower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the antidiscrimination laws and whistleblower protection laws, or, if applicable, the FDIC’s administrative or negotiated grievance procedures in order to pursue any legal remedy.
Under the existing laws, each agency, including the FDIC, retains the right, where appropriate, to discipline a federal employee for conduct that is inconsistent with federal antidiscrimination and whistleblower protection laws up to and including removal. If OSC has initiated an investigation, agencies, including the FDIC, must seek approval from the Special Counsel to discipline any employee for any alleged prohibited activity under investigation or for any related activity under 5 U.S.C. § 1214(f). Nothing in the No FEAR Act alters existing laws or permits an agency, including the FDIC, to take unfounded disciplinary action against a federal employee or to violate the procedural rights of a federal employee who has been accused of discrimination.
For further information regarding the No FEAR Act regulations, refer to 5 C.F.R. Part 724, or you may contact the FDIC’s OMWI, the Human Resources Branch in the Division of Administration, the Legal Division, and the Office of Inspector General’s Whistleblower Protection Coordinator. Additional information regarding federal antidiscrimination, whistleblower protection, and retaliation laws can be found at the EEOC website (https://www.eeoc.gov) and the OSC website (https://osc.gov).
Existing Rights Unchanged
Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands, or reduces any rights otherwise available to any employee, former employee, or applicant for employment under the laws of the United States, including the provisions of law specified in 5 U.S.C. §2302(d).
Please contact Peter Mueller at email@example.com or (703) 562-6077
if you have questions about the No FEAR Act.