Department of Health and Human Services 

OFFICE OF 

INSPECTOR GENERAL 

JUNE GIBBS BROWN 

Inspector General 

JULY 2000 

OEI-05-99-00290 

THE INDIAN HEALTH SERVICE EQUAL 

EMPLOYMENT OPPORTUNITY 

COMPLAINTS PROCESS 

A Management Review 
OFFICE OF INSPECTOR GENERAL 

The mission of the Office of Inspector General (OIG), as mandated by Public Law 95-452, is to 

protect the integrity of the Department of Health and Human Services programs as well as the 

health and welfare of beneficiaries served by them. This statutory mission is carried out through a 

nationwide program of audits, investigations, inspections, sanctions, and fraud alerts. The 

Inspector General informs the Secretary of program and management problems and recommends 

legislative, regulatory, and operational approaches to correct them. 

Office of Evaluation and Inspections 

The Office of Evaluation and Inspections (OEI) is one of several components of the Office of 

Inspector General. It conducts short-term management and program evaluations (called 

inspections) that focus on issues of concern to the Department, the Congress, and the public. The 

inspection reports provide findings and recommendations on the efficiency, vulnerability, and 

effectiveness of departmental programs. 

OEI's Chicago office prepared this report under the direction of William C. Moran, Regional 

Inspector General and Natalie Coen, Deputy Regional Inspector General. Principal OEI staff 

included: 

REGION HEADQUARTERS 

Joe Penkrot, Project Leader Alan Levine, Program Specialist

Emily Melnick, Program Analyst

Ianna Kachoris, Program Analyst

To obtain copies of this report, please call the Chicago Regional Office at 312-353-9867. 

Reports are also available on the World Wide Web at our home page address: 

http://www.dhhs.gov/progorg/oei 
EXECUTIVE SUMMAR Y 

PURPOSE 

To conduct a management review of the Equal Employment Opportunity (EEO) 

complaint process of the Indian Health Service (IHS). 

BACKGROUND 

The IHS Director requested that the Inspector General conduct an EEO management 

review including the following issues: timeliness, management practices, delegations of 

authority, conflict of interest, confidentiality, and training of EEO personnel at 

Headquarters and Area Offices. 

The Assistant Secretary for Management and Budget (ASMB) has departmental 

responsibility to provide technical assistance and policy guidance to the operating divisions 

(OPDIVS). The OPDIV EEO offices are responsible for “establishing and maintaining 

EEO programs” and processing EEO complaints. The ASMB has primary responsibility 

for preparing final agency decisions on formal EEO complaints. 

The IHS has delegated EEO responsibility for the Albuquerque, Nashville, Navajo, and 

Oklahoma City Area Offices and Headquarters West to the Oklahoma City Area Office. 

We reviewed EEO policies and procedures, complainant files, and any other available 

documentation relating to the six issues we evaluated. We compared the EEO process at 

the Area Offices, Service Units and both Headquarters to the standards established in EEO 

laws and regulations and by ASMB’s “EEO Complaints Processing Checklist.” In 

Headquarters East and Oklahoma City, we reviewed 31 formal complaint files closed in 

the last 2 years. We reviewed all 26 of the available informal complaint files closed in the 

last 2 years at Area Offices and Service Units. Using structured discussion guides, we 

interviewed a total of 223 respondents at Headquarters, Area Offices and Service Units. 

FINDINGS 

The IHS Operates under Four Conditions Which Complicate the EEO Complaints 

Process: Indian Preference, Commissioned Corps, Tribal Contracting/ 

Compacting, and Downsizing 

Complaints involving the Commissioned Corps, Indian Preference or where tribal 

EEO AND IHS 1 OEI-05-99-00290 
contracting has occurred, create confusion in the IHS EEO complaints process. These 

issues, as well as downsizing, impact the scope and structure of the EEO process. 

Inconsistencies in the EEO System Result in Unequal Treatment of Complaints 

Significant differences in the structure and approaches to handling complaints result from 

the IHS decision to divide EEO responsibilities between Headquarters East and Oklahoma 

City. The delegation of authority has resulted in considerable differences regarding the 

acceptance of formal EEO complaints between Headquarters East and Oklahoma City. 

Inconsistencies also exist in IHS’ 12 Area Offices. The Area Directors make their own 

EEO staffing decisions, determining whether or not to have an on-site, full-time EEO 

manager and/or counselors. 

The IHS EEO Program Lacks Direction, Potentially Weakening its Effectiveness 

The IHS has no systematic way of knowing whether their counselors or staff act 

appropriately on individual complaints. Neither the Headquarters East director nor the 

Oklahoma City EEO manager directly supervise EEO activities occurring in Area Offices 

or Service Units. There is a lack of uniformity in record keeping and retention, resulting 

in the inability to determine timeliness in the EEO complaint process. 

Management involvement in individual EEO complaints represents a conflict of interest 

and undermines confidentiality. In many cases, EEO staff, counselors, or others involved 

with EEO informal complaints routinely provide specific case information to the Area or 

Service Unit Director. Despite requirements that the EEO process be separate from 

personnel functions, we found IHS’ personnel office staff directly involved in the handling 

of EEO complaints in several Area Offices. Appearances of conflict of interest, even if 

inaccurate, raise questions about EEO’s impartiality. 

Many EEO staff and counselors believe that they need intermediate level or refresher 

training to advance or maintain their skills. Most EEO training is restricted to 

management staff. 

We found no evidence of any periodic self-evaluations by IHS of its own EEO process. 

Employee Distrust of EEO Is Widespread Throughout IHS and Undermines 

Effectiveness of the EEO Process 

There is widespread fear of reprisal among many IHS employees. Nearly two-thirds of the 

respondents, including some supervisory staff, indicated that they would not feel 

comfortable filing an EEO complaint. In addition, most IHS staff is unaware of IHS’ 

upper management support of and commitment to EEO principles. 

EEO AND IHS 2 OEI-05-99-00290 
RECOMMENDATIONS 

In order to address the issues identified in this report, IHS should: 

Address IHS-specific Issues Pertaining to Indian Preference, Commissioned 

Corps, Tribal Compacting/contracting and Downsizing 

Standardize the Handling of EEO Complaints 

Improve Counselor Performance and Supervision 

Standardize Complaint Reporting, Recording, and File Retention 

Implement Policy Guidance on Confidentiality 

Eliminate Conflicts of Interest and the Potential for Conflicts of Interest 

Improve Communication and Expand EEO Training and Educational 

Opportunities to All IHS Employees, EEO Staff and Counselors 

Increase Employee Trust in the EEO Process 

We provide specific details on how these recommendations can be carried out in the 

recommendations section at the end of the report. 

In order to ensure proper oversight and accountability, we also recommend that ASMB 

should: 

Perform a Follow-up Evaluation and Periodic Reviews on the Implementation of 

the OIG Recommendations 

AGENCY COMMENTS 

We received comments on the draft report from the Indian Health Service (IHS) and the 

Assistant Secretary for Management and Budget (ASMB). Both concur with the vast 

majority of our 10 recommendations and the 34 ways of achieving them. Where 

appropriate, we changed the report to reflect their comments. The full IHS and ASMB 

comments are contained in Appendix B. 

The IHS believes our recommendations “will provide opportunities for much needed 

improvement in the administration and management of the IHS EEO program.” The 

EEO AND IHS 3 OEI-05-99-00290 
IHS’ actions to date include development of an EEO website, a Fact Sheet explaining 

differences between Indian Preference and Title VII discriminatory practices, and new 

EEO posters. We appreciate the cooperation of IHS in conducting this inspection and 

look forward to working with IHS in the development of their action plan in response to 

our recommendations. 

Of the 34 ways of achieving the recommendations, IHS did not concur with the following 

four: 

The IHS does not concur with elevating EEO supervisory responsibilities to IHS 

Headquarters. The IHS responded that they were unclear about the recommended 

organizational location of upper management. To clarify, we are recommending that an 

IHS upper manager at Headquarters provide management supervision (line authority) to 

both the EEO Director in Headquarters East and the EEO manager in Oklahoma City to 

provide more accountability. We are not recommending line authority over Area EEO 

Managers through Headquarters staff offices. 

The IHS does not concur with our recommendation to implement standardized 

performance requirements and evaluation methods for EEO managers, staff and 

counselors which are reviewed/conducted by the EEO Director in Headquarters East 

and/or the EEO manager in Oklahoma City. It is unclear if IHS disagrees with our 

recommendation to implement performance requirements and evaluation methods and/or 

the line authority for evaluating performance. In either case, in order to measure EEO 

staff improvement, we believe this recommendation is necessary. 

The IHS does not concur with our recommendations to establish a counselor selection 

criteria and to prohibit managers and personnel staff from becoming counselors. We 

believe that regardless of whether objectivity can be maintained, having managers and 

personnel staff who are EEO counselors creates an appearance of a conflict of interest. 

This is detrimental to the ability of the IHS EEO program to establish an overall sense of 

trust and impartiality among IHS employees. 

The IHS does not concur with our recommendation to ensure that “EEO settlements are 

paid from a central fund, rather than an Area Director’s operating expenses, or otherwise 

ensure that an Area Director does not have decision-making authority over the settlement 

amount.” We agree with IHS that, “Areas related to each EEO issue should bear the cost 

of settling those issues.” However we believe that it creates a conflict of interest to have 

the Area Director decide the amount of the award. 

The ASMB concurs with the need to improve staff performance. However, they believe 

there are other ways of achieving staff supplements beside increased staffing levels and 

suggest that IHS consider term appointments, contracting and job sharing etc. We agree 

that staff performance can be improved through various mechanisms and would 

EEO AND IHS 4 OEI-05-99-00290 
encourage IHS to utilize any and all available to them. 

The ASMB does not concur with the recommendation that IHS ensure that EEO 

settlements are paid from a central fund, rather than an Area Director’s operation 

expenses. While we agree with ASMB that Area Offices should be held accountable, we 

stand by our belief that an Area Director’s ability to decide the monetary amount of a 

complaint settlement creates a conflict of interest. 

EEO AND IHS 5 OEI-05-99-00290 
T ABLE OF CONTENTS 

PAGE 

EXECUTIVE SUMMARY 

INTRODUCTION .......................................................... 7

FINDINGS ............................................................... 13

Conditions Affecting IHS’ EEO Process ....................................... 13

Inconsistencies in the EEO System ........................................... 15

Management Direction of EEO .............................................. 18

Employee Distrust of the EEO System ........................................ 21

RECOMMENDATIONS ................................................... 24

AGENCY COMMENTS .................................................... 28

APPENDIX A ........................................................ . . . 30

APPENDIX B ............................................................ 32

IHS Comments ..................................................... 33 

ASMB Comments ................................................... 41 

EEO AND IHS 6 OEI-05-99-00290 
INTRODUCTION 

PURPOSE 

To conduct a management review of the Equal Employment Opportunity (EEO) 

complaints process of the Indian Health Service (IHS). 

BACKGROUND 

The IHS Director requested that the Inspector General conduct an EEO management 

review including the following issues: timeliness, management practices, delegations of 

authority, conflict of interest, confidentiality, and training of EEO personnel at 

Headquarters and Area Offices. 

Legal Responsibility for EEO 

The Assistant Secretary for Management and Budget (ASMB) has departmental 

responsibility to provide technical assistance and policy guidance to the operating divisions 

(OPDIV). The OPDIV EEO offices are responsible for “establishing and maintaining 

EEO programs” and processing EEO complaints. According to 29 CFR 1614.102(a)(1), 

each agency “must provide sufficient resources to its EEO program to ensure efficient and 

successful operation.” The ASMB has primary responsibility for preparing final agency 

decisions on formal EEO complaints. 

Timeliness 

The OPDIVS follow a 9-step process (See Appendix) issued by the Equal Employment 

Opportunities Commission (EEOC) to handle individual complaints of discrimination. The 

process outlines complainant, EEO counselor and OPDIV responsibilities and time frames 

to complete requisite steps in resolving an EEO complaint. The specific time frames for 

completing EEO actions are specified in 29 CFR 1614.105(a)ff and are defined for EEO 

staff and counselors in the EEOC’s EEO Management Directive For 29 CFR. Part 1614 

(MD-110).1 

1 Subsequent to our field work, EEOC updated MD-110. The new MD-110 issuance endorses the 

principles we cite and provides additional support for some of our recommendations. All 

MD-110 citations shown in this report reflect those in place at the time of our field work. 

EEO AND IHS 7 OEI-05-99-00290 
Management Practices 

In early 1999, ASMB released an “EEO Complaints Processing Evaluation Checklist” to 

EEO directors throughout the Department of Health and Human Services (DHHS). This 

checklist serves as a guide for measuring effective management of EEO complaints 

processing and allows OPDIVS and Headquarters staff to evaluate how well they perform 

their EEO complaints functions. The checklist also provides OPDIVS guidance as to 

acceptable counselor selection, training and performance, alternative dispute resolution 

(ADR), and complaint tracking and reporting. In addition, according to 29 CFR 

1614.102(a)(11), each agency must “establish a system for periodically evaluating the 

effect of the agency’s overall EEO effort.” 

Delegations of Authority 

According to 29 CFR 1614.607, an agency head may delegate EEO authority to one or 

more designees. In 1997, IHS delegated EEO responsibility for the Albuquerque, Navajo, 

and Oklahoma City Area Offices and Headquarters West to the Oklahoma City Area 

Office. In 1998, IHS further delegated EEO responsibilities for the Nashville Area Office 

to Oklahoma City. Headquarters East retained EEO responsibilities for the Aberdeen, 

Alaska, Bemidji, Billings, Phoenix, Portland, Sacramento, and Tucson Area Offices and 

Headquarters East. 

Each of the twelve Area Directors has the authority to select an EEO Manager and to 

determine whether the position will be designated as a collateral or full-time position. 

Two Area Offices have their own full-time EEO Manager: Phoenix and Alaska2. 

Aberdeen and Bemidji share a full-time EEO Manager. Albuquerque, Headquarters West, 

Nashville, Navajo and Oklahoma City share the full-time EEO Manager in Oklahoma City. 

The Billings, Sacramento and Tucson Area Offices designate the EEO Manager position 

as collateral to their regular duties. Most Area Offices and Service Units have at least one 

EEO counselor on-site who has collateral duties. 

Conflict of Interest 

Conflict of interest can occur on EEO complaints when those who make policy or are

involved in the EEO process improperly insert themselves into the EEO process or fail to

recuse themselves when they have a personal involvement in the matter. The MD-110

specifically prohibits several activities:

C any management involvement in individual EEO complaints is inappropriate

C EEO staff are prohibited from acting as advocates for either party involved in an

2 Alaska did not have a full-time EEO Manager for 8 months. An EEO Manager was appointed 2 

days prior to our visit. 

EEO AND IHS 8 OEI-05-99-00290 
EEO complaint 

C the EEO complaint process must be kept separate from the personnel function 

C internal investigators cannot be used in certain situations (e.g., particularly 

sensitive cases involving high officials). 

Confidentiality 

Confidentiality is guaranteed to employees making informal EEO complaints by 

29 CFR 1614.105(g) and MD-110. Both citations require specific authorization by the 

complainant before a counselor can reveal their identity. Otherwise, anonymity for the 

complainant cannot be compromised. 

Confidentiality is no longer promised once a formal EEO complaint is filed.3 If employees 

want to file formal complaints, EEO counselors must advise complainants that their 

complaint file may be shared with those involved in their case who need access to the file. 

The MD-110, VI, C. 4, states those needing access may include the EEO Officer, agency 

EEO officials and those identified as being responsible for actions giving rise to the 

complaint. 

Training 

The IHS is required to provide all managers and staff information about EEO policies and 

programs. According to 29 CFR 1614.102(a)(5), agencies must “provide orientation, 

training and advice to managers and supervisors to assure their understanding and 

implementation of the EEO program.” Similarly, 29 CFR 1614.102(b)(4) requires 

agencies to “make written materials available to all employees ... informing them of the 

variety of EEO programs and administrative and judicial remedial procedures available to 

them.” 

Alternative Dispute Resolution 

The ADR process intends to resolve EEO complaints through early intervention using an 

impartial outside party to mediate the issues. An EEO counselor should routinely advise 

complainants of the availability of ADR services. If the complainant agrees to ADR 

mediation, a trained mediator will hear the issues involved and work with the involved 

3 Technically, informal complaints are “presented” rather than “filed.” For this report, we use 

“filed” when discussing the informal complaint process since that is how respondents described 

the process to us. 

EEO AND IHS 9 OEI-05-99-00290 
parties towards a resolution.4 The law requires agencies to ensure that parties be 

“entitled to participate in the selection of an arbitrator.” The mediator’s communications 

with the involved parties are confidential. If a complaint is resolved through ADR, the 

complainant cannot file an EEO complaint based on the same issue. 

New EEOC rules, effective November 9, 1999, made several ADR changes. Federal 

agencies now must offer ADR at all stages of the EEO process. 

Recent EEO Reviews at IHS 

In May 1998, the IHS “1998 Employee EEO Survey”5 found that additional EEO training 

is warranted to reduce “anti-feminist and anti-minority” perceptions and attitudes in the 

IHS workforce. In addition, the types of discrimination most often reported were race (16 

percent), gender (13 percent), and sexual harassment (9 percent). A little over half of the 

respondents (54 percent) indicated they would file an EEO complaint if they felt they had 

been discriminated against and the majority of respondents (69 percent) indicated they 

would not be hesitant to contact someone in EEO for information and or counseling. 

Most respondents felt the EEO program was necessary. Finally, there was considerable 

variation in the respondents’ perception of the degree to which IHS management supports 

the EEO program. 

Numbers of EEO Complaints at IHS 

As of May 1999, there are more than 14,000 IHS employees located in 12 Area Offices, 

individual Service Units, Headquarters East (in Washington, D.C.), and Headquarters 

West (in Albuquerque, New Mexico). At the end of fiscal year (FY) 1999, IHS reported 

that EEO counselors handled 220 informal complaints/contacts, a relatively consistent 

number when compared to the previous 3 years. 

If informal EEO counseling does not resolve the matter, aggrieved parties can file a formal 

complaint. In FY 1999, DHHS employees filed 395 formal complaints. The IHS, 

National Institutes of Health (NIH) and Food and Drug Administration (FDA) account for 

nearly 70 percent of the total number of complaints. In FY 1999, IHS employees filed 88 

4 The Administrative Dispute Resolution Act of 1996 (P.L. 104-320) says that the mediator should 

be a neutral party and “ may be a permanent or temporary officer or employee of the Federal 

Government or any other individual who is acceptable to the parties to a dispute resolution 

proceeding. A neutral shall have no official, financial, or personal conflict of interest with 

respect to the issues in controversy, unless such interest is fully disclosed in writing to all parties 

and all parties agree that the neutral may serve. A neutral who serves as a conciliator, facilitator, 

or mediator serves at the will of the parties.” 

5 This survey was mailed to a stratified random sample of 1,000 IHS employees with a response 

rate of 40%. 

EEO AND IHS 10 OEI-05-99-00290 
formal complaints, the second most complaints filed among the DHHS' OPDIVs. 

Employees of NIH filed 136 formal complaints and FDA employees filed 51.6 At the end 

of FY 1999, IHS had 192 open formal complaints, second only to NIH with 232 open 

formal complaints. 

In FY 1999, IHS employees filed a total of 308 formal and informal EEO complaints. 

Five Areas accounted for 70 percent of IHS’ EEO complaints: Navajo (79), Portland (47), 

Aberdeen (37), Oklahoma (28), Headquarters East (27). 

Bases for EEO Complaints 

Under EEO authorities, “organizations must not discriminate against individuals on the 

basis of race, color, sex, religion, national origin, age or handicap.”7 The leading 

categories of discrimination alleged in EEO IHS complaints in FY 1998 were: sex (41), 

age (36), race (28), and national origin (25). Employees also filed 57 complaints alleging 

reprisals were taken against them for filing complaints. The issues most frequently raised 

in the 1998 EEO complaints were harassment, non-sexual (28), EPMS performance 

appraisal (25), promotion (21), and assignment of duties (18). 

SCOPE AND METHODOLOGY 

We evaluated the EEO process at Headquarters East and West, all 12 IHS Area Offices, 

and one Service Unit in each Area we visited. We compared the EEO process at the Area 

Offices and both Headquarters to the standards established in EEO laws and regulations 

and to ASMB’s “EEO Complaints Processing Checklist.” We obtained available 

documentation for any of the issues IHS requested we reviewed. 

The sample included both informal and formal EEO complaints. In Headquarters East and 

Oklahoma City, we reviewed 31 formal complaint files closed in the last 2 years. We 

reviewed all of the available informal complaint files closed in the last 2 years at the Area 

Offices and Service Units, a total of 26 complaints. 

In each Area Office, Service Unit and headquarters, we reviewed EEO policies, 

procedures, complainant files, and any other documentation relating to the six issues we 

evaluated. At each office, we spoke with all available EEO staff, counselors and IHS 

employees who had EEO complaints closed in the last 2 years. We also met with Area 

and Service Unit directors, and a purposively selected sample of managers and other staff. 

Using structured discussion guides, we interviewed a total of 223 respondents. A 

6 The NIH has 16,010 employees; the FDA has 9,500 employees. 

7 Indian Health Service Circular No. 85, Appendix A, pg. 12 

EEO AND IHS 11 OEI-05-99-00290 
breakdown of these respondents follows: 

C IHS staff with EEO complaints closed after FY 1997 (20)

C EEO staff and counselors (31)

C EEO managers (10)

C Area and Service Unit directors (24)

C IHS non-management employees (73)

C IHS managers (46)

C IHS upper management (2)

C Others involved in the EEO process including ASMB, the Investigations

Manager, the ADR contractor, and Office of General Counsel regional 

attorneys (17) 

We did not review any open EEO complaints. We did not compare the IHS’ EEO 

program to other Department or Federal EEO programs except for numbers of complaints 

filed. 

Our review was conducted in accordance with the Quality Standards for Inspections 

issued by the President's Council on Integrity and Efficiency. 

EEO AND IHS 12 OEI-05-99-00290 
FINDINGS 

The IHS operates under four conditions which complicate 

the EEO complaints process: Indian Preference, 

Commissioned Corps, Tribal Contracting/Compacting, and 

Downsizing 

The IHS’ unique health care delivery system brings services to many diverse communities. 

Health care professionals and support staff from native populations, Commissioned Corps 

officers and others work together to serve Indian health care needs. Laws governing the 

rights of tribes and Indians sometimes create misconceptions regarding the rights and 

responsibilities among these groups. 

During our on-site visits, we observed several situations pertaining to the EEO program 

caused by these misunderstandings. These misunderstandings can lead to missed deadlines 

for filing and/or acting on complaints, wasted time and efforts for EEO staff and 

counselors, ill feelings among staff, workplace disruption and loss of productivity. 

Complaints involving the Indian Preference Law are being handled 

inappropriately through the EEO process 

In our discussions with respondents and observations we made during our site visits, we 

found that IHS employees are confused about the Indian Preference Law which provides a 

legal basis for preferential treatment to qualified Indian applicants and employees.8 Some 

non-Indian employees do not realize that Indian preference extends beyond hiring and 

applies to personnel actions (e.g., promotions). These employees felt they were 

consistently discriminated against throughout their careers. The EEO remedies do not 

apply to employees who believe they are treated unfairly primarily as a result of Indian 

preference being applied. In these complaints, employees should file a personnel grievance 

or use any other grievance procedure negotiated with a recognized labor organization.9 In 

a few complaints we reviewed, we noticed that EEO counselors handling complaints 

involving Indian preference as the primary issue and erroneously treating them as EEO 

matters based on race. 

8 Civil Rights Act of 1964, Title VII, Section 703(i) 

13 OEI-05-99-00290 

9 Indian Health Service Circular No. 87-2. 

EEO AND IHS 
Commissioned Corps EEO rules are still not understood in IHS, which may cause 

delays in resolving these EEO complaints 

Recent changes in handling EEO complaints from Commissioned Corps officers created 

confusion among EEO staff and counselors.10 The DHHS Personnel Instruction issued in 

August 1999 stipulates that Commissioned Corps officers must now file EEO complaints 

through the Commissioned Corps EEO process.11 However, from October 1996 to 

October 1998, Commissioned Corps officers followed the IHS EEO procedure. Many 

EEO staff and counselors were unsure how to handle these EEO complaints from October 

1996 to August 1999 when new procedures for the Commissioned Corps went into effect. 

Some IHS staff do not understand they have, and have always had, the right to file an 

EEO complaint against a Commissioned Corps officer. 

Even though Commissioned Corps officers are now directed to use their own EEO 

process under the new procedures, IHS EEO counselors play a role in handling these 

complaints. Commissioned Corps officers who wish informal resolution of their 

complaints may either seek informal counseling through the IHS EEO office or may seek 

informal resolution through the Commissioned Corps’ administrative chain.12 Despite 

these changes, some IHS employees believe that Commissioned Corps officers are not 

entitled to use IHS’ EEO complaint processes. 

Employees’ rights to EEO under tribal contracting/compacting have not been 

legally determined, potentially limiting employees’ access to the EEO process 

The IHS actions to turn over the operation of IHS facilities to Indian tribes created 

additional disparities in treating EEO complaints. The Indian Self-Determination and 

Education Assistance Act affords tribes the option to administer and operate IHS health 

services and programs in their communities, or remain in the IHS direct health system.13 

When tribes assume operations of these facilities, IHS employees working there become 

contracted Federal employees of the tribe. The right of contracted Federal employees to 

access IHS EEO has not been legally determined. Headquarters East EEO believes that 

contracted employees are not covered, while other IHS managers and regional attorneys 

feel that these employees have a legal claim to IHS EEO services. The Alaska Area Office 

makes EEO services available to employees under tribal management while other Area 

EEO offices do not. 

10 Nearly one of seven IHS employees is a Commissioned Corps officer.

11 The Commissioned Corps Personnel Manual Regulation CC46.1, p. 2

12 Ibid., p. 7

13 Public Law 93-638, as amended

EEO AND IHS 14 OEI-05-99-00290 
Downsizing restricted access to EEO services in some areas 

Although IHS’ workforce has remained relatively constant since 1993, there has been a 

reduction in the numbers of staff at Headquarters and Area Offices by more than 50 

percent. As noted in the background, the level of EEO complaints has remained relatively 

constant, but there are now fewer EEO staff and counselors available to handle these 

complaints. In looking for ways to consolidate positions during downsizing, IHS’ upper 

management allowed Area Offices to determine what duties would remain. Consequently, 

each Area Office could determine how to staff the EEO position. Two Area Offices 

employ a full-time EEO manager while three Area Offices staff the position as a collateral 

duty. Six Area Offices and Headquarters West share the services of an EEO manager. 

Inconsistencies in the EEO system result in unequal 

treatment of complaints 

Significant differences in the structure and approaches to handling complaints result from 

IHS’ dividing EEO responsibilities between Headquarters East and Oklahoma City and 

from Area Directors making their own EEO staffing decisions. All Area Offices reporting 

to Headquarters East use an Area EEO manager and contracted investigators for all 

formal EEO complaints. In contrast, Area Offices under Oklahoma City use the 

Oklahoma City EEO manager to manage their EEO process. Instead of a full-time EEO 

manager, areas under Oklahoma City have either individual EEO counselors or employee 

relations specialists who serve as local EEO contacts. In addition, these offices primarily 

use an EEO specialist in Oklahoma City to investigate formal complaints 

Acceptance of EEO complaints varies 

Based on our interviews and complaint reviews, there appears to be considerable 

differences regarding the acceptance of formal EEO complaints between Headquarters 

East and Oklahoma City. Oklahoma City routinely rejects complaints for timeliness or 

other procedural reasons, while Headquarters East sometimes accepts complaints that do 

not always meet these standards. Several IHS managers and regional attorneys 

volunteered that Headquarters East readily accepts complaints that do not have an EEO 

basis for complaint. 

Throughout IHS, many EEO staff and counselors’ understanding differs about what 

constitutes a basis for an EEO complaint. Several regional attorneys believe that many 

EEO complaints are accepted that have no “legal merit.” Area Offices differ in the way 

sexual harassment issues are handled as well. One Area Office treats sexual harassment 

EEO AND IHS 15 OEI-05-99-00290 
as a conduct issue, rather than an EEO issue.14 Consequently, unlike sexual harassment 

complainants in other IHS sites, complainants in this area have no EEO redress for their 

complaints. 

Little alternative dispute resolution is being used to resolve EEO complaints 

We found little evidence of ADR being practiced. The DHHS urges its OPDIVS to 

institute ADR processes aimed at resolving issues at the lowest possible level to avoid 

protracted and expensive litigation. To provide mediation services during the informal 

complaint process, IHS contracts with the Departmental Appeal Board Mediation 

Program (DABMP). In FY 1999, DABMP mediated 9 IHS complaints, a decrease from 

12 complaints the prior year and used $22,500 of the $65,000 allotted for travel to 

provide mediation services for IHS employees. 

The Phoenix Area Office employs a EEO complaint resolution process not used in other 

Area Offices or Service Units. There, the EEO counselor meets with complainants to 

determine if a valid EEO issue exists or if another type of grievance should be filed. If the 

counselor decides an EEO issue exists, the complaint is presented to a five-member 

management committee to determine what steps should be taken. If complainants are not 

satisfied with the results, they can file formal EEO complaints. While this model has been 

touted by Headquarters East to be an ADR model, this process does not follow 

conventional ADR principles and improperly involves management in the process.15 

Timeliness cannot be accurately determined due to the inconsistency and 

unavailability of records 

We were able to review some closed formal complaint files. In these cases, the dates 

recorded in the files indicated the cases were handled in a timely manner. However, 

several respondents reported instances where there were delays in processing their 

informal EEO complaints. One complaint we reviewed showed that an EEO manager did 

not respond to an initial complaint made via e-mail until the complainant followed up 

months later. Respondents had considerably more negative comments concerning timely 

actions and resolution on formal complaints than on informal complaints. 

14 According to Section 703, Title VII of the Civil Rights Act of 1964, as amended, sexual 

harassment is a form of discrimination for which an EEO complaint can be filed. 

15 Recent EEOC guidance explains that involving supervisors in the mediation process may lead 

employees to “feel that officials within the chain of command will more readily believe the 

supervisor’s version of events.” In the case of Cheng-Canindin v. Renaissance Hotel Associates, 

et.al., the California Supreme Court held that a review panel consisting of managers and chosen 

without input from a complainant is “inherently slanted in management’s direction.” (98 Daily 

Journal D.A.R. 13193) 

EEO AND IHS 16 OEI-05-99-00290 
The lack of uniformity in documentation and record retention on informal cases by EEO 

counselors is problematic. We attempted to review informal complaint files at Area 

Offices or Service Units. Files were unavailable in some sites and we could not always 

determine the timeliness or appropriateness of actions taken on complaints we reviewed. 

Collateral duties affect EEO counselors’ ability to complete their actions in a timely 

manner. Nearly all EEO counselors we spoke with have collateral duties. As a result, 

their EEO responsibilities are secondary to their primary jobs. Collateral duties add to the 

difficulty in coordinating meetings with complainants and supervisors. All parties involved 

may have different leave, travel or work schedules which can contribute to problems in 

meeting the mandated deadlines to respond to EEO complaints. 

Complaint reporting system is flawed 

The ASMB guidance to OPDIVS calls for a tracking system to help manage the

complaints process. At a minimum, the system should be able to “track and report ... case

status, prevent cases from getting lost, allow any staff member to find cases to provide

quick and accurate status reports, and identify problems or potential problems in work

flow.”

The IHS listing of which EEO complaints are open or closed is inaccurate. In our

attempts to review closed formal complaint files in Headquarters East and Oklahoma City,

we found that nearly one-third of the “closed” complaints we tried to review from that

listing were still open.

The EEO Area Offices maintain and track informal EEO complaints in different ways. 

The EEO counselors usually report to their EEO manager both when they receive an

informal complaint and when they complete their fact-finding. But, when a complaint

proceeds to the formal stages, Headquarters East does not routinely advise EEO managers

in the Area Offices. Similarly, the Oklahoma City EEO manager does not inform

counselors that a complaint has been accepted or rejected as a formal EEO complaint or

provide updates of the complaint status or final outcome.

The lack of a uniform reporting and tracking system also results in notification problems

for EEO complainants and others. Very often, complainants do not know the status of

their complaints and may not hear how their complaints are resolved.16 If not informed of

the outcome of their informal complaints, complainants do not know whether or when

they may file a formal EEO complaint. Those charged with discrimination may also be

unaware of the complaint outcome. At the formal stages, not informing involved parties

16 In one site we visited, the human resource person who handles informal EEO complaints advised 

that she tells complainants they may never hear how their complaint is resolved. A complainant 

verified this process during our interview. 

EEO AND IHS 17 OEI-05-99-00290 
of the status of their complaint can have repercussions involving filing appeals and the 

continued disruption to the workplace environment. At present, MD-110 does not require 

this notification. 

The IHS EEO program lacks direction, potentially weakening 

its effectiveness 

IHS management has no systematic oversight of EEO staff or counselors 

The IHS EEO managers have no systematic way of knowing whether their staff or 

counselors act appropriately on individual informal or formal complaints. Only two Area 

Office EEO managers exercise direct oversight of their counselors’ EEO activities. They 

provide regular guidance for EEO policies and procedures, opportunities for training, 

monitor progress on individual complaints, and remind counselors of processing deadlines. 

Neither Headquarters East nor the Oklahoma City EEO manager directly supervise EEO 

activities occurring in Area Offices or Service Units. 

This lack of supervisory control allows counselors to unknowingly make incorrect 

decisions or conduct themselves in an unprofessional manner. Some respondents said that 

some EEO counselors see themselves as either advocates or investigators, instead of 

impartial fact-gatherers. A regional attorney pointed out that EEO counselors should not 

be making findings of discrimination. Such improper actions make it very difficult, if not 

impossible, for DHHS to defend itself and may cost the agency considerable funds in 

settlements. Several complainants said that during the course of settling their complaints, 

EEO staff raised their voices at them, trying to threaten or intimidate them. 

The lack of IHS management direction over EEO counselor selection results in an 

imbalance of counselor coverage throughout IHS. Not all Area Offices or Service Units 

have EEO counselors. While ASMB guidance to OPDIVS states that “procedures should 

be in place to replace counselors as needed,” IHS does not use a consistent method or 

particular protocol or criteria to select EEO counselors, nor specify the time allowed for 

EEO activities. 

Due to IHS’ decentralization, Area Directors and some Service Unit Directors now 

exercise considerable influence over EEO activities. They hire EEO managers, counselors 

and support staff, approve training and travel and allocate physical space for EEO staff 

and counselors. In some instances the Area Director or Service Unit Director appoints 

staff members to include EEO counseling as collateral to their regular duties. In 

EEO AND IHS 18 OEI-05-99-00290 
other sites, counselors volunteer or are elected to assume EEO duties in addition to their 

regular jobs. 

Some respondents feel that IHS management does not provide sufficient technical 

direction to EEO staff and counselors. A Headquarters East EEO respondent said their 

office does not provide unsolicited guidance to the field. Some respondents indicated that 

the EEO system does not respond to their technical needs and that there is a 

communications gap between EEO management and Area staff. Many Area Office and 

Service Unit EEO staff and counselors have infrequent contact with the EEO director in 

Headquarters East or the EEO manager in Oklahoma City. 

We found no evidence of any periodic self-evaluation by IHS of its own EEO process, 

although ASMB recently provided all OPDIVS with an EEO self-evaluation tool. 

Although IHS sampled some employees’ opinions in the “1998 Employee EEO Survey,” 

they did not disseminate the survey results to EEO staff and counselors, or to other IHS 

managers and staff. 

Management involvement in individual EEO complaints is a conflict of interest 

and raises questions about EEO’s impartiality 

The delegation of authority to Area Directors for EEO gave Area Directors line authority 

over EEO staff in their offices. In many cases, EEO staff, counselors, or others involved 

with EEO informal complaints routinely provide specific complaint information to the 

Area or Service Unit Director. In one file we reviewed, the EEO manager informed the 

Service Unit Director by letter of the status of the informal complaint. In some Areas, the 

EEO manager, or in one case, a personnel specialist who tracks EEO complaints for the 

Area, routinely meets with the Area Director to provide detailed individual updates on 

formal and informal complaints. The delegation of authority regarding EEO matters from 

IHS Headquarters to its Area Directors cannot encompass this extent of involvement on 

individual cases and is prohibited by 29 CFR 1614.105(g). 

Many IHS employees, both staff and management, told us they feel that the EEO staff and 

process are biased. Area Directors must approve any EEO settlement of complaints 

involving managers in their Area, unless a settlement amount exceeds $10,000. Some 

respondents expressed the feeling that since any monetary settlement on these EEO 

complaints must be paid from Area Director’s operating funds, it may be difficult for the 

Area Director to be objective in these cases. 

Some respondents expressed concern that EEO counselors do not understand conflict of 

interest or how to handle an EEO complaint when conflict of interest is an issue. As 

mentioned above, some EEO staff and counselors see themselves as advocates for either 

complainants or management. According to MD-110, “EEO counselors, EEO officers, 

and EEO managers cannot serve as representatives for complainants or for agencies in 

EEO AND IHS 19 OEI-05-99-00290 
connection with the processing of discrimination complaints” as it is “inconsistent with 

their neutral roles.” Appearances of conflict of interest, even if inaccurate, raise questions 

about EEO’s impartiality.17 Two-thirds of the IHS respondents and 43 percent of the 

EEO staff and counselors said they are unfamiliar with the policy on conflict of interest. 

Personnel’s involvement with EEO is improper. 

Despite MD-110, which stipulates that the EEO process be separate from personnel 

functions, we found IHS’ personnel office staff directly involved in the handling of EEO 

complaints in several Area Offices. Conflicts of interest between personnel and EEO exist 

because many EEO complaints arise out of personnel actions. Most EEO counselors and 

managers are unaware that these types of conflict of interest represent a potential problem 

in handling EEO complaints. In some cases, personnel staff investigate EEO complaints. 

Use of an in-house investigator appears to be a conflict of interest. 

According to MD-110, an EEO investigator should not occupy a position in the agency 

that is “directly or indirectly under the jurisdiction of the head of that part of the agency in 

which the complaint arose.” This language may prohibit the EEO specialist from 

investigating complaints in the Oklahoma Area, all areas using Oklahoma City EEO 

services, and/or those naming the Area Director(s) in the complaint. Oklahoma City’s use 

of an EEO specialist to investigate formal EEO complaints may represent a conflict of 

interest and an inability to “maintain the appearance of being unbiased.”18 

EEO staff and counselors feel they need additional training to effectively perform 

their jobs 

More than half of the EEO staff and counselors (57 percent) believe that they need 

intermediate level or refresher training to advance or maintain their skills. Nearly half of 

the EEO counselors (49 percent) said that they had not received any training in several 

years. One Service Unit EEO counselor said that he had to convince his supervisor to pay 

for EEO training out of their department’s training funds, since there was no EEO money 

available for training. This long-time counselor is resigning from his counselor duties, in 

part because of IHS’ failure to provide additional training. 

The ASMB guidance to OPDIVs indicates that agencies should review the adequacy of 

17 In Ceriale v. Amco Insurance Company, the California Supreme Court vacated an arbitrator’s 

decision, based in part on their consideration of “whether the record reveals facts which might 

create an impression of possible bias.” (96 Daily Journal D.A.R. 9847) 

18 Management Directive-110, 5-5 C. 

EEO AND IHS 20 OEI-05-99-00290 
training provided to counselors and to provide refresher training if it is needed. The IHS 

does not mandate training for its counselors beyond the basic EEO counselor training. 

The IHS does not require its EEO counselors to receive a core of training classes, nor to 

periodically test to certify their competency. Some counselors are unsure of handling 

certain issues. Counselors identified the following training needs: sexual harassment 

complaints, personnel issues, formal complaints, report writing, EEO law, mediation, 

ADR dispute resolution, the non-EEO grievance processes, and the bases for complaints 

handled by EEOC. 

Coordinating training is sometimes difficult for EEO counselors with collateral duties. For 

many Service Unit counselors involved in direct patient care, finding both time to attend 

training and someone to perform their collateral duties becomes problematic. Further, 

supervisors may be hesitant to grant them time away from their primary responsibilities to 

attend training and fulfill their EEO duties. 

Many IHS non-supervisory staff do not receive EEO training. Counselors indicated that 

they are frequently faced with personnel grievance or working condition complaints from 

staff that do not qualify as a basis for an EEO complaint. Many of the respondents we 

spoke with were unaware who their EEO counselors are,19 what actions might constitute 

an EEO violation, or what their EEO rights are. Much of the EEO training is restricted to 

management staff. Although managers may be required to attend these sessions, their 

work schedules may interfere with their ability to attend scheduled EEO training. 

Employee distrust of EEO is widespread throughout IHS and 

undermines its effectiveness 

Confidentiality is compromised 

Some Area and Service Unit Directors require identifying details from EEO managers or 

counselors when informal EEO complaints are filed. This violates EEO rules of 

confidentiality. Area and Service Unit Directors may wish to be informed when their 

managers may have stepped out of line or want to protect the complainant against 

reprisals. However well-intentioned, unless the complainant has waived their right of 

confidentiality, this notification is improper.20 The IHS also violates EEO complainant 

confidentiality in its sexual harassment “zero tolerance” policy. This policy requires that 

Area Directors, Service Unit Directors and EEO managers are to be notified of specific 

complaint details when an informal sexual harassment EEO complaint is filed. 

19 The ASMB guidance to OPDIVS suggests one way to measure effectiveness is to determine if 

EEO counselors’ names and telephone numbers are publicized to employees. 

20 MD-110, Attachment A, Section A.1.a., pp 2-27. 

EEO AND IHS 21 OEI-05-99-00290 
Many respondents do not understand the EEO confidentiality standards. Although many 

respondents said that complainants and supervisors named in a complaint most often 

violate confidentiality on their complaint, several respondents said that EEO counselors 

and staff also violate these standards. Some respondents volunteered that they would not 

file an EEO complaint because of a perceived lack of confidentiality. 

Employees fear reprisals 

The EEOC advises Federal agencies must make “assurances that employees who make 

complaints of harassment or provide information related to such complaints will be 

protected against retaliation.”21 

Many IHS employees we spoke with feel that filing an EEO complaint will result in a 

reprisal by management. Employees fear being ostracized, and or stigmatized as 

troublemakers. Some employees report they are too intimidated to pursue EEO 

complaints. 

Nearly two-thirds of our respondents (62 percent), including some supervisory staff, 

indicated that they would not feel comfortable filing an EEO complaint, a considerably 

higher number than indicated in IHS’ 1998 Employee EEO Survey. Some respondents are 

fearful of approaching EEO counselors with questions and of being seen going to the EEO 

office. In response to this concern, Alaska Area Office management moved the EEO 

office to a floor separate from management. One complainant, alluding to potential 

reprisals, pointed out that reading material on EEO complaint filing that is posted on a 

hallway bulletin board may not be the best way for employees to learn about the process. 

Employees believe that EEO and management are enmeshed 

Some employees feel that management plays too great a role in the EEO program and that 

it is a tool of management. Others fear that the EEO counselor or EEO manager acts as a 

go-between to management. Others articulated their perception that management usually 

wins EEO complaints. Some respondents believe that the goal of IHS EEO is to defend 

the agency. 

Further, some employees fear that their confidentiality might be compromised due to 

management’s role in the EEO process. In a few instances, IHS managers function in the 

capacity of an EEO counselor. A manager’s participation in this process and knowledge 

of a complainant’s identity establishes a potential avenue for reprisal or a means to inhibit 

the process on behalf of management. 

21 EEOC guidance, June 18,1999 sets out standards of liabilities for employers for unlawful 

harassment by supervisors. 

EEO AND IHS 22 OEI-05-99-00290 
A few respondents indicated that they would pursue their EEO complaints elsewhere or 

take it to a higher level rather than at the Service Unit, because they did not believe they 

would get needed support. In some cases, management prevented employees from seeing 

the EEO manager or counselor. One manager required that an employee provide a week’s 

notice before approving time for the employee to see an EEO counselor. 

The IHS upper management plays little role in ensuring that EEO program goals are 

communicated and accomplished. One Headquarters East manager indicated that most 

IHS managers support EEO, but because IHS is highly decentralized, upper management 

needs to get the EEO message to all managers and staff. The bulk of the employees are at 

the Service Unit and any IHS message of EEO support does not get to the field offices. 

EEO AND IHS 23 OEI-05-99-00290 
RECOMMENDA TIONS 

The IHS EEO system functions with little oversight and direct guidance on implementing 

and executing EEO policies and procedures. The structure and management of IHS’ EEO 

program contribute to problems concerning confidentiality, conflict of interest, reprisals 

and management’s involvement in the EEO process. Problems include a lack of 

management direction and oversight, inconsistent and inaccurate reporting system, 

minimal communication, and inadequate training. In addition, most IHS staff is unaware 

of IHS’ upper management support of and commitment to EEO principles. 

Many respondents conveyed a lack of confidence in the EEO program. They are 

intimidated and hesitant to use the system intended to protect their employment rights. 

Employees’ perceptions about the process, confidentiality and impartiality are vital to 

sustaining a credible, viable EEO program. Employees must feel they can pursue a 

complaint with the confidence that it will be handled fairly, timely and confidentially by a 

well-trained EEO counselor, and that no adverse actions will be taken against them. 

Without overcoming widely-held perceptions of distrust, IHS’ EEO program cannot 

succeed. 

In order to have a more consistent, unified EEO program and complaints processing 

system which addresses the difficulties outlined above, we recommend that IHS: 

Address IHS-specific issues pertaining to Indian preference, commissioned 

corps, tribal compacting/contracting and downsizing 

C Issue a memo to all employees explaining the differences between Indian 

Preference and discriminatory practices 

C Issue a memo to all employees detailing the process for Commissioned Corps 

employees to file a compliant and the right to lodge complaints against 

Commissioned Corps employees 

C Obtain legal advice from the Office of the General Counsel and a definitive ruling 

on the status of employees working under a Memorandum of Agreement with 

Tribal Organizations and their EEO rights 

C In consultation with ASMB, and based on comparisons with other Federal and 

Departmental agencies, provide firm guidance on the ratio of EEO counselors to 

staff, ensure that these counselors are hired and trained and that they are replaced 

timely when vacancies occur 

EEO AND IHS 24 OEI-05-99-00290 
Standardize the handling of EEO complaints 

C Clarify and codify the roles and responsibilities of Headquarters East and 

Oklahoma City to their areas and each other 

C Provide upper management supervision to both the EEO Director in Headquarters 

East and the EEO manager in Oklahoma city 

C Communicate and convey in a clear manner the bases for EEO complaints, the 

process to pursue complaints, and how to handle all issues including timeliness, 

confidentiality, and conflict of interest to all EEO staff and counselors 

C Develop a specific ADR policy and process that is made available to all employees 

Improve counselor performance and supervision 

C Increase EEO staffing levels, requirements and support to include at a minimum: 

< A full-time EEO manager in each Area Office, reporting to Headquarters 

East or Oklahoma City 

< A full-time EEO counselor in each Area Office and/or a full-time counselor 

who serves the entire Area or more than one Service Unit 

C Implement performance requirements and a standardized method for evaluating 

counselor performance for EEO managers, staff and counselors which are 

reviewed/conducted by the EEO Director in Headquarters East and/or the EEO 

manager in Oklahoma City 

C Establish counselor selection criteria — managers and personnel staff should not 

be counselors 

Standardize Complaint Reporting, Recording, and File Retention 

C Standardize EEO policies and procedures for maintaining complaint data 

throughout EEO including an update of the 1985 EEO Policy Circular 

C Create a standardized system so Headquarters and EEO field staff can track 

complaint status and generate reports 

Implement policy guidance on confidentiality 

C Provide guidance on the role of Area and Service Unit directors in both the 

informal and formal stages and in sexual harassment cases 

C Provide guidelines on the maintenance of counselors’ informal notes 

EEO AND IHS 25 OEI-05-99-00290 
Improve management oversight and accountability 

C Use ASMB’s self-evaluation tool to help ensure the effective management of EEO 

complaints processing 

C Establish both short-term and long-term EEO goals and objectives to restore 

confidence in the EEO process by: 

< mounting a national initiative that demonstrates IHS commitment to 

providing a discrimination-free workplace, where EEO matters can get 

quickly and fairly resolved 

< publicizing the availability of counseling services and training 

< regularly evaluating EEO goals and objectives 

C Provide sufficient staff in Headquarters East and Oklahoma City to carry out the 

recommendations contained in this report 

Eliminate conflicts of interest and the potential for conflicts of interest 

C Seek legal advice about the extent of EEO investigations allowed to be performed 

by an EEO specialist 

C Ensure that EEO settlements are paid from a central fund, rather than an Area 

Director’s operating expenses, or otherwise ensure that an Area Director does not 

have decision-making authority over the settlement amount 

Improve communication and expand EEO training and educational opportunities 

to all IHS employees, EEO staff and counselors including 

C Conduct a annual national meeting for EEO staff and counselors

C Conduct regular area-wide regional meetings for EEO staff and counselors

C The EEO manager in Oklahoma City, the EEO Director and Headquarters EEO

staff should regularly visit all Area Offices 

C The EEO manager in Oklahoma City, the EEO Director and Headquarters EEO 

staff should regularly communicate with Area Office EEO staff and counselors 

through e-mail, bulletins and training 

C The EEO staff and counselors in Area Offices and Service Units should hold 

regularly scheduled information sessions, and updates to staff 

C Assemble a comprehensive reference book for EEO counselors with information 

specific to IHS EEO concerns 

C Establish an IHS-wide EEO web site 

C Conduct training focusing on the bases for complaints and an explanation of the 

EEO process 

C Establish a counselor training curriculum 

C Conduct training to counselors at regular interval 

C Conduct training that includes complaint prevention activities 

EEO AND IHS 26 OEI-05-99-00290 
C Offer interactive training for supervisors unable to attend in person because of 

work requirements or leave 

Increase employee trust in the EEO process 

C Management must demonstrate through both words and actions a “zero tolerance” 

for reprisals 

C Increase and make more visible upper management’s commitment and support of 

the EEO program 

In order to ensure proper oversight and accountability, we also recommend that ASMB’s 

Office of Human Resources EEO Programs Group provide technical assistance and 

guidance, as well as regular evaluations of IHS’ progress towards meeting their EEO 

goals and objectives. We recommend that: 

The ASMB EEO programs group should complete a 1 year follow-up evaluation 

on the implementation of the OIG recommendations and perform subsequent 

annual reviews 

EEO AND IHS 27 OEI-05-99-00290 
AGENCY COMMENTS 

We received comments on the draft report from the Indian Health Service (IHS) and the 

Assistant Secretary for Management and Budget (ASMB). Both concur with the vast 

majority of our 10 recommendations and the 34 ways of achieving them. Where 

appropriate, we changed the report to reflect their comments. The full IHS and ASMB 

comments are contained in Appendix B. 

The IHS believes our recommendations “will provide opportunities for much needed 

improvement in the administration and management of the IHS EEO program.” The 

IHS’ actions to date include development of an EEO website, a Fact Sheet explaining 

differences between Indian Preference and Title VII discriminatory practices, and new 

EEO posters. We appreciate the cooperation of IHS in conducting this inspection and 

look forward to working with IHS in the development of their action plan in response to 

our recommendations. 

Of the 34 ways of achieving the recommendations, IHS did not concur with the following 

four: 

The IHS does not concur with elevating EEO supervisory responsibilities to IHS 

Headquarters. The IHS responded that they were unclear about the recommended 

organizational location of upper management. To clarify, we are recommending that an 

IHS upper manager at Headquarters provide management supervision (line authority) to 

both the EEO Director in Headquarters East and the EEO manager in Oklahoma City to 

provide more accountability. We are not recommending line authority over Area EEO 

Managers through Headquarters staff offices. 

The IHS does not concur with our recommendation to implement standardized 

performance requirements and evaluation methods for EEO managers, staff and 

counselors which are reviewed/conducted by the EEO Director in Headquarters East 

and/or the EEO manager in Oklahoma City. It is unclear if IHS disagrees with our 

recommendation to implement performance requirements and evaluation methods and/or 

the line authority for evaluating performance. In either case, in order to measure EEO 

staff improvement, we believe this recommendation is necessary. 

The IHS does not concur with our recommendations to establish a counselor selection 

criteria and to prohibit managers and personnel staff from becoming counselors. We 

believe that regardless of whether objectivity can be maintained, having managers and 

personnel staff who are EEO counselors creates an appearance of a conflict of interest. 

This is detrimental to the ability of the IHS EEO program to establish an overall sense of 

EEO AND IHS 28 OEI-05-99-00290 
trust and impartiality among IHS employees. 

The IHS does not concur with our recommendation to ensure that “EEO settlements are 

paid from a central fund, rather than an Area Director’s operating expenses, or otherwise 

ensure that an Area Director does not have decision-making authority over the settlement 

amount.” We agree with IHS that, “Areas related to each EEO issue should bear the cost 

of settling those issues.” However we believe that it creates a conflict of interest to have 

the Area Director decide the amount of the award. 

The ASMB concurs with the need to improve staff performance. However, they believe 

there are other ways of achieving staff supplements beside increased staffing levels and 

suggest that IHS consider term appointments, contracting and job sharing etc. We agree 

that staff performance can be improved through various mechanisms and would encourage 

IHS to utilize any and all available to them. 

The ASMB does not concur with the recommendation that IHS ensure that EEO 

settlements are paid from a central fund, rather than an Area Director’s operation 

expenses. While we agree with ASMB that Area Offices should be held accountable, we 

stand by our belief that an Area Director’s ability to decide the monetary amount of a 

complaint settlement creates a conflict of interest. 

EEO AND IHS 29 OEI-05-99-00290 
APPENDIX A 

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APPENDIX B 

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