by BAR editor and columnist Dr. Marsha Coleman-Adebayo
Rather than crack down on discrimination and illegal retaliation, the U.S. government spends megabucks to silence complaints. “Upwards of $1 billion have been doled out by federal agencies in settlement and judgment costs for discrimination lawsuits since the No FEAR Act went into effect in 2002.” In effect, the Feds are protecting the bad guys. “The sanctions built into the No FEAR Act are not significant enough to affect the widespread discrimination, retaliation or abuse of federal employees.” It’s time for No FEAR II.
We've Got Their Number: U.S. Discrimination Penalty Bill is $1 Billion and Counting
by BAR editor and columnist Dr. Marsha Coleman-Adebayo
“The government has put the very managers who are named in NO FEAR complaints in charge of administering NO FEAR implementation.”
The goal of the No FEAR Act was to eliminate discrimination and retaliation against whistleblowers. Conflicts of interest and corruption have prevented the implementation of No FEAR accountability that would replace the racist, sexist and toxic status quo with a workplace free of discrimination and retaliation.
According to two GAO reports, mandated by the No FEAR Act, the federal government is hemorrhaging public resources because the law does not impose significant discipline on or termination of federal managers who are responsible for court judgments and settlements against the government. In order words, retaliating federal managers can cost the government hundreds of millions of dollars without the threat of being subject to disciplinary action, much less termination of their positions. The private sector, however, works in quite the opposite manner. This would lead anyone to surmise that paying off victims of discrimination and whistleblowers to the tone of $1 Billion dollars is simply the cost of doing business in America.
A recent No FEAR Coalition investigation of codified No FEAR Act-mandated GAO reports, reveals two striking facts: 1) Upwards of $1 billion have been doled out by federal agencies in settlement and judgment costs for discrimination lawsuits since the No FEAR Act went into effect in 2002. This enormous price tag indicates that discrimination and retaliation remains at immoral and unacceptably high levels government-wide. 2) The 2008 GAO report states that the expense of defending the agencies is insignificant relative to their annual budgets and has had no effect in changing existing discriminatory practices therefore. Simply put, the sanctions built into the No FEAR Act are not significant enough to affect the widespread discrimination, retaliation or abuse of federal employees.
GAO Report: Judgment Fund Treasury’s Estimate of Claim Payment Processing Costs under the No FEAR Act and Contract Disputes Act (GAO – 04 – 481) provided an initial glimpse into the financial waste directly related to race and sex discrimination and retaliation against whistleblowers. The GAO report revealed that in FY 2000 the government reimbursed the judgment fund approximately $43 million dollars.
In the years following the passage of the No FEAR Act, from 2001– 2003, according to the GAO, the Judgment Fund paid out $656 million in reimbursement for settlements and judgments in discrimination claims. These significant figures represent the initial reporting period under the No FEAR Act. From fiscal year 2003 through fiscal year 2006, the Judgment Fund paid $45.1 million to claimants for settlements, awards, and other costs involving 625 No FEAR cases at 36 federal agencies. And then there are the incalculable soft costs—morale deflation; talent pool depletion as conscientious workers see the writing on the wall and opt to leave government service; and the hardening of inefficiencies in a workplace governed by fear instead of thriving professionalism.
”Retaliating federal managers can cost the government hundreds of millions of dollars without the threat of being subject to disciplinary action, much less termination of their positions.”
Therefore, from FY 2000 to FY 2004 the federal government spent three-quarters of $1 billion protecting the illegal behavior of federal managers. This figure excludes the costs of Department of Justice attorneys and staff assigned to defend the government in Title 7 and whistleblower cases. Nor does this figure include substantial attorney fees, other costs associated with the processing of Title 7 and whistleblower complaints and their attorney’s fees when plaintiffs prevail. A modest tabulation incorporating all of the expenditures in this process will undoubtedly exceed $1 Billion.
It should be noted that an important function that was mandated by the No FEAR Act was to aggregate the total amount of financial resources devoted to maintaining the status quo environment where illegal behavior is not only tolerated but promoted. Before the No FEAR Act, agencies did not have to repay the judgment fund costs incurred for Agency discrimination.
In 2008 GAO requested that DOJ provide a cost breakdown pursuant to the mandates of the No FEAR Act. However, this report from all indications has neither been prepared nor submitted by DOJ. The last GAO report submitted to congress and the president (according to our investigation) was in FY 2008. Our secrecy-happy government has so far stonewalled requests to have additional outlay revealed. Is it unreasonable to assume that the $1 billion figure could double or even triple?
Clearly, a major concern is that the actual cost to taxpayers is unknown—beyond the known $1 billion that has been paid defending corrupt managers against NO FEAR complaints since 2002. A request from the General Accounting Office (GAO) to the Justice Department for an accurate accounting of those funds has gone unanswered for approximately 6 years.
The No FEAR Act can be credited with a number of important successes in the past ten years. No FEAR training has impacted the federal government by educating federal employees on relevant civil rights and whistleblower laws making federal employees more aware of their rights and responsibilities than any other time in the history of the federal government. No FEAR employment data is readily available on all government websites by clinking on the No FEAR icon statutorily located on the front page of every government website. Government agencies must now pay Title 7 and whistleblower retaliation costs out of their internal budgets instead of a Department of Treasury slush fund created to protect discriminating and retaliating mangers. However, there exists a conflict of interest when it is the government – a known discriminator – responsible for the curriculum and training associated with the No FEAR Act and the compilation of No FEAR statistics to potential plaintiffs, federal employees.
”A request from the General Accounting Office (GAO) to the Justice Department for an accurate accounting of those funds has gone unanswered for approximately 6 years.”
The lack of internal agency disciplinary measures against offending managers and the absence of Congressional and presidential oversight has revealed not only the magnitude of the problem but more importantly the heights to which the government will go to maintain an unhealthy and toxic federal workplace.
The NO FEAR Act was meant to provide protection to federal workers against corrupt managers who discriminate, retaliate and maintain a hostile work environment. Predictably, the government has put the very managers who are named in NO FEAR complaints in charge of administering NO FEAR implementation. That includes training federal workers and educating them about their NO FEAR rights. The fox is not only guarding the henhouse, he's parboiling the chickens.
This represents the tip of a very large iceberg. By virtue of the No FEAR data there is no longer any place for the rascals to hide – we’ve got their number. At this point, the number is $1 billion dollars and compounding.
The No FEAR Coalition was assured by Congress that it would provide additional legislative remedies if No FEAR I proved to be inadequate. After a decade of investigation and experience with No FEAR I there is a clear and certain need to provide additional legislative remedies to ensure the integrity and completion of the goals mandated by the No FEAR Act.
We've got their number. Now we need the public to be among our number and call their representatives, call the chairman of the Science Committee, or call Congressman S. James Sensenbrenner and Congresswoman Sheila Jackson Lee, co-authors of the No FEAR Act. It's time for the corruption, the retaliation and the discrimination to end. It's time for lifetime bans on criminal managers from ever working in the federal government again.
Dr. Marsha Coleman-Adebayo is the author of No FEAR: A Whistleblowers Triumph over Corruption and Retaliation at the EPA, available through amazon.com. Dr. Coleman-Adebayo worked at the EPA for 18 years and blew the whistle on a US multinational corporation that endangered South African vanadium mine workers. Marsha's successful lawsuit against the EPA lead to the introduction and passage of the ﬁrst civil rights and whistleblower law of the 21st century: the Notiﬁcation and Federal Employees Anti-discrimination and Retaliation Act of 2002 (No FEAR Act). She is Director of Transparency and Accountability for the Green Shadow Cabinet. She’s a member of the Board of Directors, National Whistleblower Center and sits on the advisory board of ExposeFacts.com. Visit her website at www.marshacoleman-adebayo.com.