5 U.S.C. § 2302 - U.S. Code - Unannotated Title 5. Government Organization and Employees § 2302. Prohibited personnel practices




 For the purpose of this title, “prohibited personnel practice” means any action described in subsection (b).

 For the purpose of this section--

 “personnel action” means--

 an appointment;

 a promotion;

 an action under chapter 75 of this title or other disciplinary or corrective action;

 a detail, transfer, or reassignment;

 a reinstatement;

 a restoration;

 a reemployment;

 a performance evaluation under chapter 43 of this title or under title 38;

 a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;

 a decision to order psychiatric testing or examination;

 the implementation or enforcement of any nondisclosure policy, form, or agreement;  and

 any other significant change in duties, responsibilities, or working conditions;

with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31 ;

 “covered position” means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action--

 excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character;  or

 excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration;

 “agency” means an Executive agency and the Government Publishing Office, but does not include--

 a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) ;

 the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office;  and

 as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action;  or

 the Government Accountability Office;  and

 “disclosure” means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences--

 any violation of any law, rule, or regulation;  or

 gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

 Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority--

 discriminate for or against any employee or applicant for employment--

 on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e-16 );

 on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 631 , 633a );

 on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(d)  );

 on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. 791 );  or

 on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

 solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of--

 an evaluation of the work performance, ability, aptitude, or general qualifications of such individual;  or

 an evaluation of the character, loyalty, or suitability of such individual;

 coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;

 deceive or willfully obstruct any person with respect to such person's right to compete for employment;

 influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

 grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;

 appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;

 take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of--

 any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences--

 any violation of any law, rule, or regulation, or

 gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;  or

 any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences--

 any violation (other than a violation of this section) of any law, rule, or regulation, or

 gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

 take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of--

 the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation--

 with regard to remedying a violation of paragraph (8);  or

 other than with regard to remedying a violation of paragraph (8);

 testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);

 cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law;  or

 for refusing to obey an order that would require the individual to violate a law;

 discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others;  except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;

 knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement;

 knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement;

 take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title;  or

 implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement:  “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection.  The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress.  For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

 The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures.  Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.

 This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under--

 section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e-16 ), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;

 sections 12 and 15 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 631 , 633a ), prohibiting discrimination on the basis of age;

 under section 6(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(d)  ), prohibiting discrimination on the basis of sex;

 section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. 791 ), prohibiting discrimination on the basis of handicapping condition;  or

 the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.

 For the purpose of this section, the term “veterans' preference requirement” means any of the following provisions of law:

Sections 2108 , 3305(b) , 3309 , 3310 , 3311 , 3312 , 3313 , 3314 , 3315 , 3316 , 3317(b) , 3318 , 3320 , 3351 , 3352 , 3363 , 3501 , 3502(b) , 3504 , and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B) ) subchapter II of chapter 75 and section 7701 .

 Section 1308(b) of the Alaska National Interest Lands Conservation Act.

 Section 301(c) of the Foreign Service Act of 1980.

 Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans' preference requirement for the purposes of this subsection.

 Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs.

 Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11).  Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action).

 A disclosure shall not be excluded from subsection (b)(8) because--

 the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

 the disclosure revealed information that had been previously disclosed;

 of the employee's or applicant's motive for making the disclosure;

 the disclosure was not made in writing;

 the disclosure was made while the employee was off duty;  or

 of the amount of time which has passed since the occurrence of the events described in the disclosure.

 If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.





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