At first glance, the Notification and Federal Employee Anti-discrimination and Retaliation (No FEAR) Act of 2002 seems like a good thing. The act, which took effect in October 2003, increases agency accountability for acts of discrimination or reprisal against employees protected by whistleblower laws.

But some legal experts worry that the ability to file complaints against federal managers without fear of retribution makes those managers tempting targets for disgruntled employees.

Other experts say the act will make managers more accountable for their actions and more sensitive to employee concerns, keeping personnel disputes from spiraling into lawsuits.

No FEAR mandates that agencies pay judgments out of their own budgets when they lose or settle discrimination and whistleblower cases. Before the act was passed, such judgments were paid out of a general government fund.

Back pay at stake. Here’s how the No FEAR Act works: Say an employee receives a bad performance appraisal, asserts that he did the same quality of work as a younger employee and files an Equal Employment Opportunity administrative complaint. Under the No FEAR act, if the employee wins the case, the agency has to pay the complainant’s “relief”—meaning, if the bad review led to a lower salary, the agency would have to pay the employee’s back pay, said Joseph P. Gebhardt, managing attorney at Washington law firm Gebhardt & Associates.

In some cases, the agency also would have to pay the employee’s attorney’s fees. No FEAR also requires agencies to post EEO case data on their Web sites, and it requires the Treasury Department’s Financial Management Service to post a list of agencies that fail to repay an FMS-administered judgment fund or make arrangements in writing to reimburse the fund.

Once Treasury makes a payment from the judgment fund, the agency has 45 days to reimburse the fund or arrange a payment plan, said Wanda Rogers, Treasury’s assistant commissioner for financial operations for FMS.

Rogers said that about $31.2 million in payments for litigation in 508 No FEAR cases was disbursed from the judgement fund from October 2003 to September 2005. Thus far, all federal agencies involved in EEO cases have either reimbursed the fund or set up a payment plan, she said.

One of the goals of the No FEAR Act is to “effect a culture change in federal government to where managers are held accountable for acts of discrimination or reprisal,” said Bill Bransford, a partner in the Washington law firm Shaw, Bransford, Veilleux & Roth.

The theory is that if an agency’s own balance sheets are affected by unfairness in the workplace, the agency will bring greater scrutiny to its managers’ actions, Bransford said. But Bransford worries that federal managers may have to beware of becoming scapegoats in some cases.

However, Stan Graham, a partner with Waller, Lansden, Dortch & Davis of Nashville, Tenn., said the No FEAR Act is more of a preventive measure. The added accountability will keep employee-versus-manager disputes from escalating to the point of a lawsuit, he said.

Mark A. Robbins, general counsel for the Office of Personnel Management, agreed. It’s much easier to prevent acts of discrimination than to deal with them after they have occurred, Robbins said.

The No FEAR Act also has a training element, so managers can become more sensitive to discrimination issues before a situation ever gets to the EEO complaint stage, said Gary Hozempa, senior staff attorney with the Equal Employment Opportunity Commission.

EEOC is responsible for enforcing Title 2 of the No FEAR Act, which requires agencies to post EEO data on their Web sites.

“Congress wants to know how many complaints have been filed, and how many have been filed by more than one person,” Hozempa said. “Congress also wants to know the basis under which the complaints were raised: race, sex, disability.”

Legal experts agree that it’s still too soon to tell what effect No FEAR will have on the federal landscape. “But it’s our hope—and the public policy purpose behind the statute—to elevate agency interest and concern over whistleblower and EEO claims,” Robbins said.

Ultimately, No FEAR will “make it hurt when an agency transgresses EEO requirements,” Robbins said.

In other words, when agencies start feeling the pain in their pocketbooks, they will be willing to make the cultural changes necessary to minimize situations that lead to claims under No FEAR.