OPM to issue rules on new anti-discrimination law by Oct. 1

Agencies will have ample instructions by Oct. 1 on how to comply with a law designed to hold them more accountable for discrimination in the federal workplace, an Office of Personnel Management official said Thursday.

Though the Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act may take some getting used to, OPM regulations will help agencies clearly understand its requirements, said Mark Robbins, OPM's general counsel. These regulations will be ready by Oct. 1, when the law takes effect, at least in an interim form, he said.

No FEAR is a well-intentioned law, but is "dense to figure out," said Joan Garner, deputy chief of defensive litigation at the U.S. Attorney's Office in the Eastern District of Pennsylvania. During a Tuesday seminar at the Equal Employment Opportunity Commission's annual convention in Atlantic City, N.J., Garner pointed out several areas where the law is apt to cause confusion, unless agencies receive further guidance.

For instance, No FEAR, signed in May 2002, requires agencies to use their own funds, rather than a general Treasury fund, to settle discrimination and whistleblower lawsuits. But the law does not say what office within an agency is responsible for the payments, nor does it establish whether agencies will need to pay judgments on lawsuits filed prior to Oct. 1, but closed after that date, Garner said.

Some of these details have been hammered out, Robbins said. The Treasury Department will still pay settlements out of the general fund initially, but agencies will need to reimburse the fund, Robbins said. It will be up to them to figure out where they will find the money to do so, he said.

The money could come from general appropriations, or from the agency division whose managers are found to have violated rules against discrimination, Garner said. "This will be one of the biggest issues," she added. "No [agency] has a budget that I know of that's earmarked for settlements."

OPM is determining a "scope of retroactivity" for the new payment rules, Robbins said. Attorneys in Robbins' office are studying the extent to which similar laws have been applied retroactively, although "at some point, you just have to arbitrarily pick a date," Robbins said.

The date OPM decides upon will show up in the interim regulations. President Bush on July 8 put OPM and the Justice Department in charge of writing the regulations covering settlement payments.

In addition, OPM is responsible for providing guidance on various reporting and training requirements included in Title II of No FEAR, Robbins said. Under the law, agencies must make all workers aware of equal employment opportunity and whistleblower protection laws. They must also file an annual report detailing the number of whistleblower cases filed against them, results of the cases, amounts of any settlements involved and numbers of employees disciplined for discrimination or harassment.

Agencies will have at least one year to get used to the reporting guidelines detailed in OPM's October regulations, Robbins said, because the first report is due 180 days after fiscal 2004 ends. This means agencies could have until spring 2005 to file their reports, if necessary, he explained. Another requirement directs agencies to present lawmakers with their internal plans for complying with No FEAR reporting, 30 days after OPM issues final regulations, Robbins said.

This requirement, along with payment issues, is the only one that agencies will need to worry about in the near term, Robbins said.

EEOC lawyers are responsible for issuing separate regulations clarifying some of the terminology in Title III of No FEAR and outlining information the law requires agencies to post on their Web sites, according to Mona Papillon, an attorney at the EEOC's Office of Legal Counsel. These regulations should also be ready on, or close to, Oct. 1, Papillon said.

Garner said she worries that OPM will not complete its guidance in time, adding to the confusion that No FEAR is already bound to cause. "Oct. 1 looms before us," she said. OPM has consulted with Justice officials, the EEOC and Treasury since being charged with developing the guidance, but to date has held few formal meetings, she and Papillon said.

But Robbins said OPM has been corresponding frequently about the regulations, through informal means, and added that he is confident the interim regulations will be ready on time. Those regulations will be finalized once agencies have had a chance to comment. OPM has plenty of experience issuing similar guidance, Robbins said. "We're used to this role. I think that's why the president chose us to [work on the regulations]."

Once issued, the No FEAR regulations should not prove controversial, or confusing, Robbins said. "The confusion, I suppose, will come internally in agencies," he said. "And I don't minimize that."