U.S. Commission on Civil Rights 

Office of Civil Rights Evaluation 

Ten-Year Check-Up: Have Federal Agencies 

Responded to Civil Rights Recommendations? 

 Volume IV: An Evaluation of the Departments of Education, Health and 

Human Services, and Housing and Urban Development, and 

the Equal Employment Opportunity Commission

Draft Report for Commissioners’ Review 

May 27, 2004
Staff Draft May 2004 

Contents 

Chapter 1: Introduction ............................................................................................................... 1

Definitions of Terms................................................................................................................... 1 

Department of Education ............................................................................................................ 2 

Equal Employment Opportunity Commission............................................................................ 3 

Department of Health and Human Services................................................................................ 3 

Department of Housing and Urban Development ...................................................................... 4 

Scope........................................................................................................................................... 4 

Methodology............................................................................................................................... 5 

Conclusion .................................................................................................................................. 6 

Chapter 2: Department of Education ......................................................................................... 8

Previous Commission Reviews of DOEd................................................................................... 9 

Mission and Responsibilities—OCR .......................................................................................... 9 

Priority of Civil Rights.............................................................................................................. 10 

Resources—Funding and Staffing ............................................................................................ 11 

Planning .................................................................................................................................... 14 

Policy Guidance........................................................................................................................ 15 

Technical Assistance................................................................................................................. 23 

Education and Outreach............................................................................................................ 26 

Compliance Reviews ................................................................................................................ 28 

Deficiencies, Remedies, and Sanctions .................................................................................... 31 

Staff Training............................................................................................................................ 31 

Oversight and Quality Assurance ............................................................................................. 34 

Coordination ............................................................................................................................. 35 

Output Evaluation ..................................................................................................................... 36 

Conclusion ................................................................................................................................ 38 

Chapter 3: Equal Employment Opportunity Commission..................................................... 39

Previous Commission Reviews of EEOC................................................................................. 39 

Mission and Responsibilities .................................................................................................... 40 

Priority of Civil Rights.............................................................................................................. 41 

Resources—Funding and Staffing ............................................................................................ 43 

Planning .................................................................................................................................... 47 

Policy Guidance........................................................................................................................ 50 

Technical Assistance................................................................................................................. 53 

Education and Outreach............................................................................................................ 55 

Enforcement Activities ............................................................................................................. 59 

Complaint Processing ............................................................................................................... 62 

Investigations ........................................................................................................................ 63 

Mediation .............................................................................................................................. 65 

Special Charges..................................................................................................................... 68 

Charge Resolutions ............................................................................................................... 70 

Charge Processing Time ....................................................................................................... 70

Litigation................................................................................................................................... 71 
Staff Draft May 2004 

Staff Training............................................................................................................................ 72 

Oversight and Quality Assurance ............................................................................................. 72 

Coordination ............................................................................................................................. 73 

Conclusion ................................................................................................................................ 75 

Chapter 4: Department of Health and Human Services ......................................................... 77

Previous Commission Reviews of HHS ................................................................................... 77 

Mission and Responsibilities—OCR ........................................................................................ 78 

Priority of Civil Rights.............................................................................................................. 80 

Resources—Funding and Staffing ............................................................................................ 84 

Planning .................................................................................................................................... 87 

Policy Guidance........................................................................................................................ 88 

Title VI Regulations.............................................................................................................. 89 

Case Resolution Manual ....................................................................................................... 90

LEP Guidance ....................................................................................................................... 90 

Technical Assistance................................................................................................................. 92 

Education and Outreach............................................................................................................ 92 

Complaint Processing ............................................................................................................... 94 

Compliance Reviews ................................................................................................................ 94 

Pre-Award Reviews .............................................................................................................. 94 

Post-Award Reviews............................................................................................................. 96 

Limited-Scope Reviews and Full-Scope Reviews................................................................ 97 

Staff Training............................................................................................................................ 98 

Coordination ............................................................................................................................. 99 

Oversight and Quality Assurance ........................................................................................... 100 

Data Collection and Analysis.................................................................................................. 100 

Community Involvement ........................................................................................................ 102 

Delegation............................................................................................................................... 102 

Conclusion .............................................................................................................................. 103 

Chapter 5: Department of Housing and Urban Development.............................................. 106

Previous Commission Reviews of HUD................................................................................. 107 

Mission and Responsibilities—FHEO.................................................................................... 108 

Priority of Civil Rights............................................................................................................ 109 

Title VI................................................................................................................................ 109 

Title VIII ............................................................................................................................. 113 

Resources—Funding and Staffing .......................................................................................... 114 

Planning .................................................................................................................................. 118 

Policy Guidance...................................................................................................................... 120 

Regulations ......................................................................................................................... 120 

Guidelines ........................................................................................................................... 121 

Policies................................................................................................................................ 122 

Enforcement Procedures ......................................................................................................... 124 

Technical Assistance............................................................................................................... 125 

Education and Outreach.......................................................................................................... 127 

Complaint Processing ............................................................................................................. 129 
Staff Draft May 2004 

Compliance Reviews .............................................................................................................. 134 

Staff Training.......................................................................................................................... 138 

FHA..................................................................................................................................... 138 

Title VI................................................................................................................................ 139 

Oversight and Quality Assurance ........................................................................................... 140 

Certification of State and Local Fair Housing Agencies ........................................................ 141 

Creating New Private Fair Housing Organizations ................................................................ 144 

Conclusion .............................................................................................................................. 145 

Chapter 6: Findings and Recommendations .......................................................................... 147

Figures

2.1 DOEd/OCR Organizational Structure, 2004..........................................................................11 

2.2 DOEd/OCR Budget, 1996–2004 ...........................................................................................12 

2.3 DOEd/OCR Staffing, 1996–2003 ..........................................................................................13 

3.1 EEOC Organizational Structure, 2004...................................................................................43 

3.2 EEOC Budget, 1998–2002.....................................................................................................44 

3.3 A Comparison of EEOC “A” and “B” Charges with On-Site Visits, 1998–2003.................65 

4.1 HHS/OCR Organizational Structure, 1998............................................................................81 

4.2 HHS/OCR Organizational Structure, 2003............................................................................82 

5.1 HUD/FHEO Organizational Structure, 1994.......................................................................110 

5.2 HUD/FHEO Organizational Structure, 2004.......................................................................112 

5.3 HUD/FHEO Budget 1998–2003..........................................................................................116 

5.4 HUD/FHEO Staffing, 1998–2003 .......................................................................................117 

Tables 

2.1 Acronyms in Chapter 2 ............................................................................................................8 

2.2 DOEd/OCR Compliance Reviews, 1998–2003.....................................................................29 

2.3 DOEd/OCR Training Budget, 1997–2003.............................................................................33 

2.4 DOEd/OCR Performance Indicators, 2000–2004..................................................................37 

3.1 Acronyms in Chapter 3 ..........................................................................................................39 

3.2 Requested and Actual Full-Time-Equivalent Staff at EEOC, 1998–2002 ............................46 

3.3 EEOC Mediations Conducted and Resolved, 1999–2003 .....................................................67 

3.4 EEOC Multiple Aggrieved Cases on the Litigation Docket as a Percent of 

Cases in Litigation, 1997–2003 .............................................................................................69 

3.5 EEOC Monetary Awards Collected from Administrative Process and Litigation, 1998–2002 ....71 

4.1 Acronyms in Chapter 4 ..........................................................................................................77 

4.2 HHS/OCR Funding and Staffing by Component and Activity, 1998–2003..........................86 

4.3 HHS/OCR Pre-Award Reviews, 1998–2002.........................................................................96 

4.4 HHS/OCR Post-Award Reviews, 1998–2002 .......................................................................97 

4.5 HHS/OCR Limited-Scope Reviews and Full-Scope Reviews, 1998–2002 ..........................98 

5.1 Acronyms in Chapter 5 ........................................................................................................107 

5.2 HUD and FHAP Aged Cases (over 100 days old), 2003.....................................................131 

5.3 HUD and FHAP (all FHAP agencies) Title VIII Complaints, 1998–2002 .........................133 

5.4 HUD Title VI Pre-Award Reviews, 1998–2001..................................................................135 

5.5 HUD Title VI Post-Award Reviews, 1998–2001 ................................................................137
Staff Draft May 2004 1

Chapter 1: Introduction 

Historically, and to this day, people of color, those with disabilities, and other 

marginalized Americans have looked to the federal government to redress wrongs committed 

against them while seeking equal access to quality education, health care, and housing, and fair 

treatment in employment. Whether the government has appropriately responded to the public’s 

trust is the source of countless studies, including the U.S. Commission on Civil Rights’ own. 

Even so, federal agencies have been mandated to enforce civil rights laws passed to protect 

individuals denied equal protection on account of their race, color, religion, sex, age, national 

origin, disability, and familial status. With the force of civil rights laws, the federal government 

has scored significant victories since the 1960s. 

Over the past 10 years, as a part of its fact-finding mission, the Commission published 16 

reports that evaluated 11 federal agencies and offered more than 1,100 recommendations for 

improving their civil rights operations. In the last two years, the Commission revisited these 

agencies and issued a series of reports determining whether or not the agencies implemented the 

recommendations. This serves two purposes. First, it measures the agencies’ efforts and success 

at addressing civil rights concerns. Second, it enables the Commission to measure its own 

effectiveness at fulfilling its monitoring and evaluation role. 

This study is the fourth and final volume in this series. In 2002, the Commission issued 

Ten-Year Check-Up: Have Federal Agencies Responded to Civil Rights Recommendations? 

Volume I: A Blueprint for Civil Rights Enforcement, which cataloged and disclosed elements for 

effective civil rights enforcement, including priorities, resources (funding and staffing), planning 

and policy guidance, and compliance reviews. In 2002 and 2003, the Commission issued Volume 

II: An Evaluation of the Departments of Justice, Labor, and Transportation and Volume III: An 

Evaluation of the Departments of Agriculture and the Interior, the Environmental Protection 

Agency, and the Small Business Administration, respectively. Volumes II and III evaluated the 

named departments’ performance with respect to the foregoing elements to determine how 

effectively they implemented past recommendations. 

Definitions of Terms 

“External matters” in this report pertain to enforcement of Title VI of the Civil Rights 

Act of 1964,1

 Title VIII of the Civil Rights Act of 1968,2 as amended, and Title IX of the 

Education Amendments of 1972.3 Title VI prohibits discrimination in federally funded programs 

based on race, color, or national origin, and protects against a broad range of discrimination, 

 

1

 Pub. L. No. 88-352, tit. VI, 78 Stat. 252 (codified as amended at 42 U.S.C. §§ 2000d–2000d-(7) (2004)). 

2

 Pub. L. No. 88-352, tit. VI, 78 Stat. 241, tit. VIII (codified as amended at scattered sections of 42 U.S.C. (2004)). 3

 Pub. L. No. 92-318, tit. IX, 86 Stat. 373 (codified as amended at 20 U.S.C. §§ 1681–1688 (2004)). 
Staff Draft May 2004 2

including denial of services; differences in the quality, quantity, or manner of services; different 

standards for participation; and discrimination in an activity conducted in a facility built with 

federal funds. Congress authorized government agencies to enforce Title VI to prevent recipients 

from using federal funds to support discrimination. The U.S. Department of Justice (DOJ) is 

responsible for coordinating federal Title VI enforcement.4 Title VIII of the Civil Rights Act of 

1968 (Fair Housing Act (FHA)), as amended, prohibits discrimination in the sale, rental, and 

financing of dwellings, and in other housing-related transactions, based on race, color, national 

origin, religion, sex, familial status (including children under the age of 18 living with parents or 

legal custodians, pregnant women, and people securing custody of children under the age of 18), 

and handicap (disability).5 DOJ also coordinates with the Department of Housing and Urban 

Development (HUD) in FHA enforcement.6 Title IX bans sex discrimination in schools in 

academics or athletics. The Departments of Education (DOEd), Health and Human Services 

(HHS), and HUD have Title VI responsibilities. In addition, HUD is the key agency for 

enforcing Title VIII and DOEd plays an important role in Title IX enforcement. 

“Internal matters” pertain to employment discrimination. Title VII of the Civil Rights Act 

of 1964 prohibits discriminatory practices of public and private sector employers based on color, 

race, sex, religion, or national origin.7 The Equal Employment Opportunity Commission (EEOC) 

is the lead agency enforcing Title VII. 

Have the Departments of Education, Health and Human Services, Housing and Urban 

Development, and the Equal Employment Opportunity Commission responded to Commission 

recommendation and, if so, how effectively? These are the questions this study addresses. The 

study examines the agencies’ external and internal civil rights enforcement. 

Department of Education 

The mission of DOEd is to ensure equal access to education and promote educational 

excellence throughout the United States. Since the Commission’s previous reviews, three key 

positions in the Office for Civil Rights (OCR) have become vacant: assistant secretary for civil 

rights, the deputy assistant secretary for enforcement, and the deputy assistant secretary for 

policy. OCR remains proactive in providing technical assistance and outreach on priority issues. 

However, enforcement practices show weakness, for example, in the absence of manuals 

explaining Title VI compliance and review processes, the limited use of pre-award reviews, and 

a case resolution manual that does not delineate procedures for whether, when, and to what 

degree it would review performance of those to whom it gave federal funds. The manual also 

 

4

 Executive Order 12250 delegates responsibility to the U.S. Department of Justice to provide leadership and 

coordinate the Title VI implementation, compliance, and enforcement responsibilities of the federal agencies. 

Executive Order 12,250 §§ 1-101, 1-201, 3 C.F.R. § 298 (1981), reprinted in 42 U.S.C. § 2000d-1 (1988). 5 U.S. Department of Housing and Urban Development, “Fair Housing Laws and Presidential Executive Orders,” 

<http://www.hud.gov/offices/fheo/FHLaws/index.cfm> (last accessed Mar. 12, 2004) (hereafter cited as HUD, “Fair 

Housing Laws and Presidential Executive Orders”). 

6

 U.S. Commission on Civil Rights, The Fair Housing Amendments Act of 1988: The Enforcement Report, 

September 1994, pp. 189, 191. 

7

 Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 

U.S.C. §§ 2000e–2000e-17 (1964)). 
Staff Draft May 2004 3

does not contain separate sections stating the various means by which it evaluates its different 

programs. The DOEd Secretary must make filling the three vacancies a priority and OCR should 

expeditiously rectify enforcement weaknesses. 

Equal Employment Opportunity Commission 

The mission of EEOC is to promote equality of opportunity in the workplace and enforce 

federal laws prohibiting employment discrimination. Now all of its commissioner positions and 

the general counsel position are finally filled. There is also a new strategic plan for FY 2004–

2009 centering on three strategic objectives: justice and opportunity, inclusive workplace, and 

organizational excellence. EEOC is active in education and outreach, engages ethnic media for 

this purpose, and has an information system to track such activities. The Office of Field 

Program’s annual review of a sample of case files for accuracy in case categorization fully met 

its target goal for this measure, which was 90 percent, in FY 2001 and 2002. Moreover, the 

number of multiple aggrieved cases8

 grew yearly since FY 1997. However, the emphasis is on 

plans and their development but not execution, for example, the agency’s Five-Point Plan, 

Strategic Enforcement and Litigation Plan, and five-year Revolving Fund business plan. Goal 

setting is vital as a road map, but more energy at EEOC also must be directed to reaching targets 

and outcome review. Most EEOC guidance and information clarifying disability-related terms 

were issued before 2000, clearly signifying a review is necessary. Informal guidance for the 

public on several topics was issued since 2000, employing the question-and-answer format. 

However, the legal and human resource and other related professional communities need 

detailed, formal guidance to guide them. 

Department of Health and Human Services 

The mission of HHS is to protect the health of all Americans and provide essential health 

services, especially for those who are least able to help themselves. Since the Commission’s 

previous reviews, the Office for Civil Rights (OCR) has streamlined its organization and 

operations to bring about a more cohesive approach to enforcement. It can now track 

expenditures and identify areas in which resources are needed. Moreover, OCR provides ongoing 

civil rights training, technical assistance, education and outreach, and guidance to operating 

divisions and their recipients concerning civil rights laws and requirements. It needs to improve 

its compliance reviews. Only a select number of applicants undergo pre-award reviews before 

receiving funding and a very small number of post-award reviews are on-site visits. To assist 

OCR in its work, the Commission previously recommended expanded delegation of authority to 

eligible operating divisions. OCR holds firm that other departmental entities should not enforce 

civil rights in programs and that program administration and program enforcement should 

function separately. However, delegation of authority should apply more resources to 

enforcement, and further HHS overall mission to protect all Americans. 

 

8

 Multiple aggrieved cases are cases that challenge a policy that applies to a group of similarly situated individuals 

and cases challenging a practice that affects a group of similarly situated individuals. Brett Brenner, attorney 

advisor, U.S. Equal Employment Opportunity Commission, e-mail, Apr. 29, 2004. 
Staff Draft May 2004 4

Department of Housing and Urban Development 

The mission of HUD is to increase homeownership, support community development, 

and increase access to affordable housing free from discrimination. Since the Commission’s 

previous review, HUD implemented many recommendations. A major source of concern is 

serious funding and staffing insufficiency against a backdrop of overall increase in the Title VI 

and FHA workload. Commitment to agencywide civil rights enforcement is evident in the use of 

“Civil Rights Front-End and Limited Monitoring Review Protocol” in which program offices 

participate in civil rights monitoring. On the other hand, historic and current underutilization of 

secretary-initiated complaints misses an opportunity to use a powerful strategy against broadbased discrimination. Further, nearly 15 years since FHA became operational, there are just 98 

state and local agencies participating in Fair Housing Assistance Program (FHAP) to process 

complaints, and of that only 69 percent are HUD certified.9 Securing adequate funding and 

staffing, expanding secretary-initiated complaints, and increasing FHAP agencies are critical 

priorities. 

Scope 

This review covers the Departments of Education, Health and Human Services, Housing 

and Urban Development, and Equal Employment Opportunity Commission. 

The study focuses on recommendations made in the following Commission reports: 

 Equal Educational Opportunity and Nondiscrimination for Girls in Advanced 

Mathematics, Science, and Technology Education: Federal Enforcement of Title IX 

(2000). 

 Equal Educational Opportunity and Nondiscrimination for Minority Students: Federal 

Enforcement of Title VI in Ability Grouping Practices (1999). 

 Equal Educational Opportunity and Nondiscrimination for Student with Disabilities: 

Federal Enforcement of Section 504 (1997). 

 Equal Educational Opportunity and Nondiscrimination for Students with Limited English 

Proficiency: Federal Enforcement of Title VI and Lau v. Nichols (1997). 

 Equal Educational Opportunity Project Series: Volume I (1996). 

 The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and 

Ensuring Equality—Volume I: The Role of Government and Private Health Care 

Programs and Initiatives (1999). 

 

9

 The Fair Housing Assistance Program (FHAP) provides funds that supplement the fair housing enforcement 

activities of HUD-certified state and local agencies. FHAP funds training, case processing, education and outreach, 

improving agency data and information systems, as well as capacity-building for newly HUD-certified agencies for 

up to two years. HUD also reimburses these state and local agencies for investigating individual fair housing 

complaints. The Office of Fair Housing and Equal Opportunity (FHEO) administers FHAP. See U.S. Department of 

Housing and Urban Development’s Response to the U.S. Commission on Civil Rights Interrogatory for Volume IV 

of the Ten-Year Review of Civil Rights Enforcement, Office of Fair Housing and Equal Opportunity, Dec. 5, 2003, 

p. 3. 
Staff Draft May 2004 5

 The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and 

Ensuring Equality—Volume II: The Role of Federal Civil Rights Enforcement Efforts 

(1999). 

 The Fair Housing Amendments Act of 1988: The Enforcement Report (1994). 

 Prospects and Impact of Losing State and Local Agencies from the Federal Fair Housing 

System (1992). 

 Overcoming the Past, Focusing on the Future: An Assessment of the U.S. Equal 

Employment Opportunity Commission’s Enforcement Efforts (2000). 

 Helping Employers Comply with the ADA: An Assessment of How the U.S. Equal 

Employment Opportunity Commission Is Enforcing Title I of the Americans with 

Disabilities Act (1998). 

 Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted 

Programs (1996). 

 Civil Rights Issues Facing Asian Americans in the 1990s (1992). 

The study analyzes the following elements relevant to civil rights enforcement at each 

department: 

 Priority of civil rights. 

 Resources (funding and staffing) provided to carry out the work. 

 Effective planning. 

 Policy guidance prepared and issued. 

 Technical assistance. 

 Education and outreach. 

 Effective complaint processing process. 

 Quality compliance reviews. 

 Staff training. 

 Initiatives that maximize effectiveness in accomplishing civil rights enforcement. (Such 

initiatives include oversight and quality assurance of civil rights program, effective 

coordination, and community involvement.) 

Methodology 

In assessing whether the departments or their components have responded to the 

Commission’s previous recommendations made in the above named reports, the Commission 

conducted fact-findings that included interrogatories posing questions which focused on 224 

recommendations made to the Department of Education; 199 to the Equal Employment 

Opportunity Commission; 234 to the Department of Health and Human Services; and 66 to the 

Department of Housing and Urban Development. 

In addition to analyzing interrogatory responses, the Commission reviewed relevant 

policy, planning, and budget documents, annual reports, and Civil Rights Implementation Plans; 
Staff Draft May 2004 6

interviewed civil rights staff; and reviewed other appropriate reports. Owing to the 

Commission’s lack of resources, the work was performed exclusively in Washington, D.C.; thus 

the Commission could not examine field offices firsthand. 

Conclusion 

At the conclusion of three years of research and analysis, the Commission establishes that 

most agencies generally track funding inputs and output indicators that measure processes, such 

as complaints resolved and reviews conducted. The Commission recognizes the opportunity for 

agencies to employ complex output indicators that assess mission accomplishment such as 

eradication of discrimination. Federal agencies would do well to consider more complex tools 

such as testing, experimentation, analysis of behavioral data, or public surveys to establish bases 

against which its progress toward mission accomplishment can be measured.10

 The Commission’s studies also identified several model programs. The Department of 

Labor’s data collection and analysis system for its job-training program, for example, is an 

excellent model of a recipient compliance evaluation system that facilitated Title VI 

enforcement. DOJ’s Disabilities Rights Section’s technical assistance program and the use of 

mediation for the enforcement of the Americans with Disabilities Act serve as models for other 

components in DOJ.11 HUD’s Risk Analysis Data Management System, which predicts recipient 

civil rights risk or discriminatory potential, helps the Office of Fair Housing and Equal 

Opportunity (FHEO) identify persons for on-site reviews. Overall, DOEd continues to serve as a 

model for other agencies in carrying out its enforcement responsibilities. 

The record on agency implementation of previous Commission recommendation is 

varied. The Environmental Protection Agency, shortly after receiving the Commission’s 1996 

recommendations, created an internal Title VI Task Force to, among other duties, evaluate and 

implement them.12 Volume IV concludes that HUD implemented many of the Commission’s 

recommendations. EEOC implemented few recommendations, asserting it was better served by 

existing practices and other approaches. DOEd indicates that some recommendations were not 

addressed because the specific issues were no longer priorities within OCR. HHS implemented 

some of the recommendations. 

A central Commission role is monitoring federal civil rights activities to ensure equal 

treatment regardless of race, color, religion, sex, age, disability, or national origin, or in the 

administration of justice in all areas of life. The Commission’s monitoring highlights 

 

10 Social or behavioral science methods include laboratory experiments, field experiments, analysis of observational 

data and natural experiments, and survey and administrative records reports. Measuring Racial Discrimination, a 

report of the National Research Council of the National Academies, established these factors as relevant to 

measuring discrimination. See the National Research Council of the National Academies, Measuring Racial 

Discrimination, 2004. 

11 U.S. Commission on Civil Rights, Ten-Year Check-Up: Have Federal Government Agencies Responded to Civil 

Rights Recommendations? Volume II: An Evaluation of the Departments of Justice, Labor, and Transportation, 

September 2002, p. x. 

12 U.S. Commission on Civil Rights, Ten-Year Check-Up: Have Federal Government Agencies Responded to Civil 

Rights Recommendations? Volume III: An Evaluation of the Departments of Agriculture and the Interior, the 

Environmental Protection Agency, and the Small Business Administration, September 2003, p. xii. 
Staff Draft May 2004 7

deficiencies in federal civil rights enforcement as practiced, while its corrective 

recommendations and widespread dissemination of best practices strengthen civil rights 

enforcement. The Commission urges the administration, Congress, and federal civil rights 

enforcement agencies to join its endeavor. 
Staff Draft May 2004 8

Chapter 2: Department of Education 

Congress first created a federal education function in 1867 to collect information that 

would help the states establish effective school systems. Over the ensuing 130 years, the 

agency’s name and location within the Executive Branch have changed. The Department of 

Education (DOEd) was created in 1980. Its mission is to ensure equal access to education and to 

promote educational excellence throughout the nation.1

 Today, the department’s elementary and 

secondary programs annually serve nearly 15,000 school districts and more than 53 million 

students attending over 92,000 public schools and 27,000 private schools.2

The Department of Education contains 10 program offices and nine staff offices. The 10 

program offices are (1) the Institute of Education Sciences; (2) the Office of Elementary and 

Secondary Education; (3) the Office of English Language Acquisition, Language Enhancement 

and Academic Achievement for Limited English Proficient Students; (4) the Office of Federal 

Student Aid; (5) the Office of Innovation and Improvement; (6) the Office of Postsecondary 

Education; (7) the Office of Safe and Drug-Free Schools; (8) the Office of Special Education and 

Rehabilitation Services; (9) the Office of Vocational and Adult Education; and (10) the Office 

for Civil Rights.3 

Acronyms are used throughout this chapter. Table 2.1 lists those referenced frequently. 

TABLE 2.1 

Acronyms in Chapter 2 

Civil Rights Implementation Plan CRIP 

English Language Learner ELL 

Individuals with Disabilities Education Act IDEA 

National Center for Education Statistics NCES 

Office for Civil Rights OCR 

Office of Management and Budget OMB 

Office of Special Education and Rehabilitative Services OSERS 

Profile, Assessment, and Resolution PAR 

U.S. Department of Education DOEd 

U.S. Department of Justice DOJ 

 

1

 U.S. Department of Education, Office for Civil Rights, “Annual Report to Congress Fiscal Years 2001 and 2002,” 

July 2003, p. 2 (hereafter cited as DOEd/OCR, “2001 and 2002 Annual Report”). 

2

 U.S. Department of Education, Office for Civil Rights, “Office for Civil Rights Fiscal Year 2000 Annual Report to 

Congress,” p. 3. 

3

 U.S. Department of Education, “Ed Staff Organization,” <http://www.ed.gov/about/offices/list/index.html?scr=h> 

(last accessed May 18, 2004). 
Staff Draft May 2004 9

Previous Commission Reviews of DOEd 

Between 1992 and 2000, the U.S. Commission on Civil Rights released seven reports that 

made 224 recommendations to the Department of Education concerning its adherence to civil 

rights enforcement.4 The Commission found strengths and weaknesses in OCR’s enforcement 

practices. It commended DOEd/OCR for having a model organizational structure whereby the 

assistant secretary reports directly to the Secretary; aggressively using administrative and other 

options to necessitate Title VI compliance; actively and effectively conducting Title VI 

education and outreach and technical assistance; and possessing a superior data collection and 

analysis system. The Commission took issue with the absence of manuals for explaining 

procedures for Title VI compliance and review processes; the inaccessibility of DOEd/OCR’s 

database to the public; OCR’s limited use of pre-award reviews; and the continuous decline in 

the number of initiated compliance reviews. This study examines whether DOEd has 

implemented recommendations made in the earlier reports, and focuses on OCR, DOEd’s 

enforcement unit. 

Mission and Responsibilities—OCR 

DOEd’s Office for Civil Rights (OCR) is one of the largest civil rights enforcement units 

in the federal government.5 To ensure equality in and equal access to education programs, OCR 

enforces civil rights laws that prohibit discrimination in programs or activities that receive 

federal financial assistance. OCR is responsible for enforcing the following statutes: 

 Title VI of the Civil Rights Act of 1964.6

 Title IX of the Education Amendments of 1972.7

 

 Section 504 of the Rehabilitation Act of 1973.8 

 

4

 U.S. Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, February 1992 

(hereafter cited as USCCR, Asian Americans in the 1990s); U.S. Commission on Civil Rights, Federal Title VI 

Enforcement to Ensure Nondiscrimination in Federally Assisted Programs, June 1996 (hereafter cited as USCCR, 

Federal Title VI Enforcement); U.S. Commission on Civil Rights, Equal Educational Opportunity Project Series, 

Volume I, December 1996 (hereafter cited as USCCR, Equal Educational Opportunity, Volume I); U.S. Commission 

on Civil Rights, Equal Educational Opportunity and Nondiscrimination for Students with Disabilities: Federal 

Enforcement of Section 504, Vol. II, September 1997 (hereafter cited as USCCR, Federal Enforcement of Section 

504); U.S. Commission on Civil Rights, Equal Educational Opportunity and Nondiscrimination for Students with 

Limited English Proficiency: Federal Enforcement of Title VI and Lau v. Nichols, Vol. III, November 1997 

(hereafter cited as USCCR, Federal Enforcement of Title VI and Lau v. Nichols); U.S. Commission on Civil Rights, 

Equal Educational Opportunity and Nondiscrimination for Minority Students: Federal Enforcement of Title VI in 

Ability Grouping Practices, Vol. IV, September 1999 (hereafter cited as USCCR, Federal Enforcement of Title VI in 

Ability Grouping Practices); U.S. Commission on Civil Rights, Equal Educational Opportunity and 

Nondiscrimination for Girls in Advanced Mathematics, Science, and Technology Education: Federal Enforcement 

of Title IX, Vol. V, July 2000 (hereafter cited as USCCR, Federal Enforcement of Title IX). 

5

 U.S. Department of Education, “U.S. Paige Issues Statement on Resignation of Assistant Secretary for Civil Rights 

Gerald Reynolds,” Oct. 31, 2002, p. 1. 

6

 Pub. L. No. 88-352, tit. VI, 78 Stat. 252 (codified as amended at 42 U.S.C. §§ 2000d–2000d-(7) (2004)). 

7

 Pub. L. No. 92-318, tit. IX, 86 Stat. 373 (codified as amended at 20 U.S.C. §§ 1681–1688 (2004)). 8

 Pub. L. No. 93-112, § 504, 87 Stat. 394 (codified as amended at 29 U.S.C. § 794 (2004)). 
Staff Draft May 2004 10

 The Age Discrimination Act of 1975.9

 Title II of the Americans with Disabilities Act of 1990.10 

 The Boy Scouts of America Equal Access Act.11 

As the enforcement arm of DOEd, OCR investigates discrimination complaints, conducts 

compliance reviews, monitors corrective action plans, and provides technical assistance on civil 

rights issues. Twelve enforcement offices within OCR are responsible for preventing, 

identifying, ending, and remedying discrimination against the nation’s students. The 

administrative offices in Washington, D.C., provide additional administrative support, 

coordination services, policy development, and overall leadership.12 

Priority of Civil Rights 

In its 1996 report, the Commission commended DOEd for its exemplary organizational 

structure and recommended that OCR retain that structure within headquarters and regional 

offices. The Commission also recommended that OCR continue its coordination with the Office 

of the General Counsel to ensure that OCR was familiar with the legal policy positions of the 

program offices.13

Although OCR’s organizational structure has changed since 1996, the assistant secretary 

for civil rights continues to report directly to both the Secretary and the deputy secretary.14 OCR 

has a deputy assistant secretary for enforcement and a deputy assistant secretary for policy who 

report to the assistant secretary for civil rights. However, the top three positions within OCR are 

vacant. The assistant secretary for civil rights resigned October 31, 2003. The deputy assistant 

secretary for enforcement position has been vacant since December 2002, and the deputy 

assistant secretary for policy position became vacant in November 2003; no one is acting in 

either position. The special assistant to the assistant secretary for civil rights is “delegated the 

authority to perform the functions of the assistant secretary for civil rights” until Congress 

confirms a successor. The special assistant to the assistant secretary for civil rights has also 

served as acting deputy assistant secretary for enforcement. 

Two senior enforcement directors have authority over four enforcement divisions. Each 

enforcement division consists of three regional offices (see figure 2.1). The Program Legal 

Group, which consists of three teams, supports OCR by preparing or helping enforcement 

divisions prepare motions, briefs, pleadings, and other legal documents on case-related matters; 

 

9

 Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621–634 (2004)). 

10 Pub. L. No. 101-336, tit. II and III, 104 Stat. 327 (codified as amended in scattered sections of 42 U.S.C.) (2004). 11 Pub. L. No. 107-110, tit. IX, § 901, 115 Stat. 1425 (codified at 20 U.S.C. § 7905 (2004)); U.S. Department of 

Education’s Response to the U.S. Commission on Civil Rights’ Interrogatory for Volume IV of the Ten-Year 

Review of Civil Rights Enforcement, Office for Civil Rights, Nov. 14, 2003, p. 1 (hereafter cited as DOEd 

Interrogatory). 

12 U.S. Department of Education, “About OCR,” <http://www.ed.gov/about/offices/list/ocr/aboutocr.html?exp=0> 

(last accessed May 12, 2004). 

13 USCCR, Federal Title VI Enforcement, p. 210. 14 DOEd Interrogatory, p. 3. 
Staff Draft May 2004 11

developing policies, legal standards, guidelines, and regulations pertaining to civil rights 

compliance; developing investigative guidance manuals, technical assistance, and training 

materials for staff engaged in compliance and technical assistance activities; and identifying 

areas in which the development of legal standards and policies is needed.15

Among this section’s key points is: 

 The top three positions—the assistant secretary for civil rights, the deputy assistant 

secretary for enforcement, and the deputy assistant secretary for policy—are vacant. 

FIGURE 2.1 

DOEd/OCR Organizational Structure, 2004 

Source: U.S. Department of Education, “OCR Organizational Chart and Functional Statements,” Oct. 28, 1999, p. 2. 

Resources—Funding and Staffing 

In its 1996 report, the Commission found that OCR’s workload, in particular the number 

of complaints it received, had increased steadily over time, but its budget and staff resources had 

 

15 U.S. Department of Education, “OCR Organizational Chart and Functional Statements,” Oct. 28, 1999, pp. 9–11. 

Office for Civil Rights 

 

 

 

New York 

Region

Philadelphia 

Region

Seattle 

Region

Enforcement Division 

C

Enforcement Division 

D

Chicago 

Region

Cleveland 

Region

Denver 

Region

San 

Francisco 

Resource Management 

Team

Atlanta 

Region

Metro (DC) 

Region

 Enforcement Division 

B

Human Resources 

Team

Budget and Planning 

Support Team

Information Technology 

Team

Customer Service 

Team 

 Enforcement Division 

A

Boston 

Region

Team III

Program Legal Team

Dallas 

Region

Kansas City 

Region

Team I Team II
Staff Draft May 2004 12

fallen. As a result, the Commission recommended that OCR assess itself quarterly to ensure that 

resource reductions do not hamper its ability to enforce civil rights statutes.16

OCR’s budget has steadily increased over the past seven years (see figure 2.2). However, 

salaries and expenses, including pay raises, cost of living adjustments, and increases in 

retirement and health benefits, but not the hiring of additional staff, have absorbed increases in 

funding. Personnel-related matters consume more than 70 percent of OCR’s budget. Expenses 

related to DOEd/OCR’s rent, telecommunications, and local area network computer system have 

also exhausted OCR’s budget increases.17 

FIGURE 2.2 

DOEd/OCR Budget, 1996–2004

Source: U.S. Department of Education, Office for Civil Rights, “Annual Report to Congress 

Fiscal Years 2001 and 2002,” July 2003, p. 2. 

After OCR’s budget decreased nearly 1 percent between FY 1996 and 1997, it grew 

continuously between FY 1998 and 2002. The greatest increase, 12 percent, occurred between 

FY 1997 and 1998. After FY 1998, the budget increased annually, but by successively smaller 

percentages. Between FY 2003 and 2004, OCR’s budget increased only 3 percent (see figure 

2.2). Congress, not the Department of Education, authorizes OCR’s budget and staffing levels, 

and officials believe Congress is providing sufficient resources (funding and staffing) to enable 

OCR to investigate discrimination complaints in a timely manner, conduct compliance reviews, 

and provide technical assistance.18 

Within the past seven years, OCR’s staffing level has decreased 6.2 percent. The largest 

change occurred between FY 1996 and 1997, when OCR’s full-time-equivalent (FTE) staff level 

fell by 63, an 8.5 percent reduction. Between FY 1998 and 1999, the number of FTEs increased 

 

16 USCCR, Federal Title VI Enforcement, p. 211. 

17 DOEd Interrogatory, p. 2. 

18 Ibid., pp. 1–2. 

79.6

75.8

71.2

66.0

61.5

55.2 54.9

85.7

88.3

$0.0

$10.0

$20.0

$30.0

$40.0

$50.0

$60.0

$70.0

$80.0

$90.0

1996 1997 1998 1999 2000 2001 2002 2003 2004

Fiscal year

Millions of dollars
Staff Draft May 2004 13

from 685 to 727. After increasing 6.1 percent, FTEs decreased again, roughly 2 percent, between 

FY 1999 and 2000 and FY 2000 and 2001. Although the number of FTEs decreased 6 percent 

between FY 2002 and 2003 (see figure 2.3), OCR does not believe that decreased staffing has 

hindered its ability to fulfill its responsibilities. 

In 1996, OCR did not track staff resources by issue area and program activity. The 

Commission recommended that in addition to tracking its resources, OCR expand its information 

management system to include resources expended to support other important civil rights 

activities, such as pre- and post-award reviews and data collection and analysis.19 

FIGURE 2.3 

DOEd/OCR Staffing, 1996–2003

Source: U.S. Department of Education, Office for Civil Rights, “Annual Report to Congress 

Fiscal Years 2001 and 2002,” July 2003, p. 2. 

OCR uses Oracle Financials, the department’s automated accounting system to track 

expenditures.20 While the system tracks resources expended, such as travel and computer 

technology, it still cannot segregate expenditures for its different civil rights activities. In the 

past, OCR has always used the same tracking system as the department. None of DOEd’s past 

systems has ever tracked expenditures separately for different civil rights activities. 

Among this section’s key points are: 

 OCR’s budget has continuously increased since FY 1996. 

 Between FY 2002 and 2003, the number of FTEs decreased 6 percent. 

 OCR still does not track expenditures for its different civil rights activities. 

 

19 USCCR, Federal Title VI Enforcement, p. 210. 20 DOEd Interrogatory, p. 2. 

744

685

727

712

698

654

681

696

640

660

680

700

720

740

760

1996 1997 1998 1999 2000 2001 2002 2003

Fiscal year

Full-time-equivalent staff
Staff Draft May 2004 14

Planning 

In past studies, the Commission found that DOEd used its strategic plan, which outlined 

an overall management philosophy for OCR, as a foundation for OCR’s civil rights policies and 

actions. A separate office—the Planning, Analysis, and Systems Service—maintained an 

information system and was responsible for DOEd’s operational planning. In addition, OCR’s 

component offices each submitted enforcement plans that described specific strategies, goals, 

and objectives and assign resources to specific tasks. The Commission recommended that OCR 

continue to use its information system and the Planning, Analysis, and Systems Service to 

develop annual civil rights enforcement plans. The plans should be based on analyses of 

available resources, legal requirements, and projected workload; contain timetables for achieving 

specific goals and objectives; and measure accomplishments against plans from the preceding 

years.

21 

The Commission now finds that the Planning, Analysis, and Systems Service no longer 

exist. The four enforcement divisions develop annual enforcement plans for approval of the 

assistant secretary, based on the national objectives and guidance from the deputy assistant 

secretary for enforcement and the two enforcement directors.22

In past studies, the Commission also found that DOEd’s Civil Rights Implementation 

Plan (CRIP) did not conform to the Department of Justice (DOJ) guidelines and that DOEd 

regarded the plan as a reporting instrument. The document plan did not provide information 

adequate for DOJ to assess enforcement or for the public to understand it. As a result, the 

Commission recommended that DOEd incorporate the CRIP preparation into its management 

and strategic planning processes. The Commission also recommended that OCR submit its 

component enforcement plans to DOJ as part of its CRIP.23

OCR continues to prepare and submit an annual CRIP to DOJ. According to OCR, the 

plan is prepared according to DOJ guidance. Receiving no feedback from DOJ, OCR assumes its 

plans conform to guidelines.24 Effective FY 2003, DOJ changed its CRIP reporting guidelines. 

The revised schedules and reporting format capture summaries of an agency’s civil rights 

activities in an improved manner.25 For example, in the new format, long narratives are no longer 

required. DOJ solicits more quantitative data. 

OCR does not submit its annual civil rights enforcement plans to DOJ as part of its CRIP 

because the information in the enforcement documents are irrelevant to DOEd’s CRIP. Thus, 

DOEd argues, sending the plans to DOJ would serve no purpose.26 

 

21 USCCR, Federal Title VI Enforcement, pp. 216–17. 22 DOEd Interrogatory, p. 4. 

23 USCCR, Federal Title VI Enforcement, p. 217. 

24 DOEd Interrogatory, pp. 2–4. 

25 Ralph F. Boyd, Jr., letter to Federal Funding Agency Civil Rights Directors, “FY 2003 Information and Reporting 

Requirements for Agencies that Administer Federally Assisted Programs Subject to Executive Order 12250,” Dec. 

13, 2002, p. 2. 

26 DOEd Interrogatory, p. 4. 
Staff Draft May 2004 15

Among this section’s key points is: 

 The Planning, Analysis, and Systems Service no longer exists. The four enforcement 

divisions develop annual enforcement plans for approval of the assistant secretary, based 

on the national objectives and guidance from the deputy assistant secretary for 

enforcement and the two enforcement directors. 

Policy Guidance 

In its 1996 report, the Commission found that DOEd’s Title VI regulations had not been 

updated to reflect changes necessitated after the Civil Rights Restoration Act of 1987 passed. In 

addition, the regulations did not reflect the full scope of DOEd’s fund termination authority. The 

Commission recommended that DOEd revise its Title VI regulations to include a clarified 

definition of “covered programs or activities.” The Commission also recommended that DOEd 

make explicit its authority to terminate funding for a recipient’s programs if discrimination is 

present in the operation of those programs and elsewhere in the recipient institution.27 

In accordance with the court’s decision in Cureton v. NCAA, the regulations governing 

Titles VI and IX, Section 504, and the Age Discrimination Act have been amended to reflect the 

clear definitions that the 1987 Civil Rights Restoration Act created.28 Each regulation provides a 

conforming definition of “program or activity” or “program.” A brief discussion of coverage and 

fund termination is in the preamble.29 DOEd was the first federal agency to amend its regulations 

to conform to the Civil Rights Restoration Act. 

The Commission’s 1996 study also revealed that since 1980 DOEd had not revised the 

appendix to its Title VI regulations to list the department’s Title VI programs. The Commission 

recommended that DOEd publish a complete, updated list of its federally funded programs 

annually in the Federal Register. Alternatively, DOEd could revise its regulations to make 

reference to a readily available source of information, such as the Catalog of Federal Domestic 

Assistance published by the Office Management and Budget (OMB) and the General Services 

Administration.30 

DOEd now publishes “Guide to U.S. Department of Education Programs and Resources,” 

which is available on its Web site.31 This publication lists and describes each program detailing 

the purposes, the eligibility requirements, and the intended beneficiaries. 

DOEd had not issued Title VI guidelines for each of its federally assisted programs. The 

Commission recommended that OCR review the programs and determine whether adequate Title 

 

27 USCCR, Federal Title VI Enforcement, pp. 211–12. 28 198 F.3d 107 (3d Cir. 1999); Conforming Amendments to the Regulations Governing Nondiscrimination on the 

Basis of Race, Color, National Origin, Disability, Sex, and Age Under the Civil Rights Restoration Act of 1987, 65 

Fed. Reg. 68,050 (2000) (to be codified at 34 C.F.R. pts. 100, 104, 106, and 110); DOEd Interrogatory, p. 12. 

29 DOEd Interrogatory, p. 12. 

30 USCCR, Federal Title VI Enforcement, p. 212. 31 See <http://web99.ed.gov/GTEP/Program2.nsf> (last accessed May 12, 2004). 
Staff Draft May 2004 16

VI guidance existed. Where guidance did not exist, OCR should take steps to develop and 

disseminate the needed guidance.32

As program offices bring forth guidance problems, OCR will consider those issues and 

respond to each on a case-by-case basis. OCR indicated that this is a more effective way to 

ensure that programs are implemented consistent with Title VI requirements.33

In 1996, the Commission found that DOEd had recently issued a complaint resolution 

manual outlining complaint investigation procedures. OCR had not, however, produced manuals 

for explaining procedures for other Title VI compliance and review processes. As a result, the 

Commission recommended that OCR develop a comprehensive procedures manual.34

OCR’s prevailing document is its case resolution manual, which was first introduced in 

1993 and updated in 2001. Aside from outlining complaint investigation procedures, it offers a 

small section that instructs staff to use the same investigative procedures for compliance reviews 

and for complaint resolution.35 The manual does not delineate procedures for pre-award36 or 

post-award reviews, nor does it contain separate sections for conducting compliance reviews for 

different types of DOEd programs; for example, the procedures for conducting a compliance 

review of a school district are very different from the procedures for conducting a compliance 

review of a college or university. According to OCR, a revised manual entitled the “Case 

Resolution and Investigative Manual” will be issued to staff and posted on the Internet during 

FY 2004.37

In 1992, the Commission reviewed the admissions discrimination controversies at three 

universities: Brown University, the University of California at Berkeley, and Harvard University. 

Brown officials later admitted that “Asian American students have been treated unfairly in the 

admissions process,” and remedial measures were implemented shortly thereafter. A Special 

Committee of Berkeley’s Academic Senate pinpointed several factors that may have been 

responsible for a precipitous decline in Asian American admissions in the fall of 1984, including 

a decision to cease guaranteeing admission to economically disadvantaged applicants who did 

not qualify for affirmative action. In 1988, OCR conducted a compliance review and found that 

the lower admit rate for Asian American applicants in comparison with white applicants could be 

entirely explained by admission preferences that Harvard gave to athletes and children of alumni 

(legacies). OCR determined that legacy preferences are not per se illegal. However, the 

Commission recommended that OCR issue policy guidance clarifying requirements that a 

university must meet under Title VI to justify a legacy preference or other admissions policies 

that have a disparate impact by race, color, or national origin.38 

 

32 USCCR, Federal Title VI Enforcement, p. 212. 33 DOEd Interrogatory, p. 13. 

34 USCCR, Federal Title VI Enforcement, p. 213. 35 U.S. Department of Education, Office for Civil Rights, “Case Resolution Manual,” Apr. 9, 2001, p. 19. 

36 OCR only performs pre-award reviews mandated by law under the Magnet Schools Assistance Program. 

37 U.S. Department of Education, Office for Civil Rights Comments on USCCR Draft 10-Year Review, p. 3. 38 USCCR, Asian Americans in the 1990s, pp. 195–97. 
Staff Draft May 2004 17

OCR has not issued any such guidance and also has not received complaints on this issue. 

According to OCR, if complaints are filed in this area, Titles VI and IX and their implementing 

regulations, case law, and existing policy would address the legal requirements.39 

OCR’s strategic plan required it to become a partner with local beneficiaries, advocacy 

groups, and other entities. Because no formal guidance from OCR headquarters existed on the 

partnership process, each region developed its own pilot program. The Kansas City Enforcement 

Office formalized its partnership process review, entitled Profile, Assessment, and Resolution 

(PAR), and issued documents that explained clearly PAR’s application to high-priority issue 

areas.40 The Commission recommended that OCR finalize and disseminate the PAR review selfassessment survey to all its regional offices. In 1999, the Commission found that although the 

PAR reviews were successful, Kansas City was still the only OCR enforcement office using 

them.41 

After the completion of the pilot program in Kansas City, OCR discontinued PAR 

reviews because of competing priorities, which include minorities in special education, English 

language learners in special education, and accessibility reviews. The last PAR review was done 

in 1999, and at this time OCR has no plans to restart the reviews.42 

In 1996, the Commission found that Section 504 regulations43 were subdivided into topic 

areas and that this specificity helped funding recipients, beneficiaries, employees, and other 

individuals understand their rights and responsibilities under the federal regulations. OCR staff 

and officials, however, noted that the general public has little understanding of Title VI in 

comparison with Section 504.44 As a result, the Commission recommended that OCR issue new 

Title VI regulations45 modeled on the subdivision in the Title IX46 and Section 504 regulations.47 

The Title VI regulations were the first of the nondiscrimination regulations that the 

former Department of Health, Education, and Welfare (HEW) published in 1964. HEW and 

DOEd used Title VI regulations as the model for regulations promulgated to implement later 

nondiscrimination statutes. Therefore, according to DOEd, the regulatory restructuring the 

Commission suggested is unnecessary.48 

In 1996, the Commission found that although OCR’s draft guidance on fairness in testing 

was detailed, it applied only to testing under Titles VI and IX. At that time, the Commission 

recommended that OCR issue finalized investigative guidance on fairness in testing. The 

 

39 DOEd Interrogatory, p. 13. 

40 USCCR, Equal Educational Opportunity, Volume I, pp. 251–52. 

41 USCCR, Federal Enforcement of Title VI in Ability Grouping Practices, p. 125. 42 DOEd Interrogatory, p. 14. 

43 34 C.F.R. pt. 104 (2004). 

44 USCCR, Equal Educational Opportunity, Volume I, pp. 254–55. 45 34 C.F.R. pt. 100 (2004). 

46 34 C.F.R. pt. 106 (2004). 

47 USCCR, Equal Educational Opportunity, Volume I, p. 255. 48 DOEd Interrogatory, pp. 14–15. 
Staff Draft May 2004 18

Commission also recommended that OCR modify the draft to include a discussion of the legal 

standards and investigative guidance on testing under Section 504 and Title II of the Americans 

with Disabilities Act.49

In December 2000, OCR issued “The Use of Tests as Part of High-Stakes DecisionMaking for Students: A Resource Guide for Educators and Policy Makers.” OCR developed this 

document as a resource guide for its external customers and not as an investigative guide for 

OCR employees. Employees rely on the statute, the regulations, and case law when investigating 

testing issues. Often, documents developed or published during previous administrations are 

archived when a new administration comes into the agency. Archived documents become 

available to the public through OCR’s Web site and under the Freedom of Information Act 

(FOIA). The testing document was archived in 2001.50

Previously, the Commission found that OCR staff had easy access to policies, resource 

materials, education and technical assistance documents, and other information through a single 

computerized database. The public, however, did not have access to this database. As a result, 

the Commission recommended that OCR take advantage of its database of information and make 

its policies, investigative guidance, and other education and technical assistance materials 

available to the public through an electronic bulletin board service or through the Internet.51

OCR’s Web site is now accessible to the public.52 The site provides the public access to 

OCR’s current education and technical assistance materials and some policy and investigative 

guidance documents. Although the list of documents is not inclusive, the public may request 

other documents. 

OCR undertook enforcement and compliance activities that were affected at times by 

state statutes and policies already in place. The Commission recommended that OCR regional 

offices be informed of state civil rights policies and compliance programs for all states within 

their regions. The Commission also recommended that OCR take appropriate steps to inform 

school districts and state officials of their obligations under federal law and to ensure that school 

districts are in compliance with Title VI and Lau v. Nichols, which requires that English be 

taught to students who are limited English proficient in order for them to participate 

meaningfully in education programs.53

OCR indicates that its enforcement offices work closely with state officials on all federal 

civil rights matters involving educational institutions. In many jurisdictions, state civil rights 

laws have greater, as opposed to fewer, requirements than federal regulations. Rather than 

 

49 USCCR, Equal Educational Opportunity, Volume I, p. 258. 50 DOEd Interrogatory, p. 15. 

51 USCCR, Equal Educational Opportunity, Volume I, p. 259. 52 See <http://www.ed.gov/about/offices/list/ocr/publications.html> (last accessed Apr. 19, 2004). 

53 USCCR, Federal Enforcement of Title VI and Lau v. Nichols, pp. 231–32. In Lau v. Nichols, the landmark case in 

bilingual education, the parent of a Chinese student sued the San Francisco School Board. The case questioned 

whether non-English-speaking children received a meaningful opportunity to participate when instructed in a 

language they cannot understand. The Supreme Court ruled in favor of Lau, suggesting equal treatment does not 

ensure equal opportunity. 414 U.S. 563 (1974). 
Staff Draft May 2004 19

focusing on areas in which state laws or regulations do not match federal requirements, OCR 

devotes itself to informing states about the federal requirements. For example, OCR worked with 

six State Departments of Education that supervised districts with small numbers of English 

language learner (ELL) students; those districts had not provided services that comply with the 

requirements of Title VI and Lau guidelines. According to OCR, this state-level effort ensures 

“low-incidence” districts meet their obligations to comply with federal law. Other ways in which 

OCR informs school districts and state officials of their obligations include (1) mailing 

information to administrators at the state level to inform them about their obligations; (2) 

delivering joint presentations with states on Title VI and Lau, which are directed to state- and 

district-level administrators; (3) providing information on its Web site for all customers; and (4) 

conducting statewide reviews that provide important information to district officials.54 

The Commission found that despite the landmark Brown v. Board of Education 

decision,55 most schools in the United States still used ability grouping to organize students 

within classrooms.56 After the Brown decision prohibited racial segregation in education, local 

education officials simultaneously complied with the judicial mandate to allow students of 

different races to attend the same schools while they relied on ability grouping and tracking to 

achieve de facto segregation within schools. The Commission recommended that OCR 

investigate and monitor vigorously how schools implemented ability grouping to ensure 

compliance with civil rights laws. In addition, the Commission recommended that OCR 

strengthen and improve its technical assistance, outreach, and education programs to provide 

clear and detailed guidance to state and local education agencies, school administrators, district 

Title VI compliance officers, teachers, counselors, professional support staff, and parents on how 

to ensure equal access to educational opportunities or compliance with Title VI.57 The 

Commission identified five key principles and recommended that OCR implement them in 

providing guidance on education planning.58 

OCR still considers the overrepresentation of minorities in lower track courses a 

problem,59 and has proactively initiated compliance activities on the misidentification of 

minorities and students with limited English proficiency for special education. Because 

education planning is a state and local responsibility, providing guidance on the subject falls 

outside OCR’s purview. OCR does, however, provide guidance if problems arise in a particular 

 

54 DOEd Interrogatory, p. 18. 

55 347 U.S. 483 (1954). On May 17, 1954, the United States Supreme Court announced its decision that “separate 

educational facilities are inherently unequal.” The decision effectively denied the legal basis for segregation in 

Kansas and 20 other states with segregated classrooms. 

56 USCCR, Federal Enforcement of Title VI in Ability Grouping Practices, pp. 118–19. Historically, school officials 

used ability grouping to separate students based on racial rather than academic considerations. 

57 USCCR, Federal Enforcement of Title VI in Ability Grouping Practices, pp. 119–20. 58 The five key principles are (1) providing parental notification and encouraging parental participation; (2) using 

neutral and nondiscriminatory screening and diagnostic procedures; (3) structuring education programs to serve a 

diverse student population by grouping students to reflect differential ability in various subjects and re-evaluating 

and reassigning students periodically to reflect changes in ability; (4) evaluating and allocating teachers, facilities, 

and other resources among education programs; and (5) taking steps to eliminate all institutional barriers promoting 

equal access to all subjects and activities, and counseling each student to maximize his or her potential opportunities. 

59 DOEd Interrogatory, p. 4. 
Staff Draft May 2004 20

case resolution where appropriate planning measures are necessary to achieve compliance with 

federal requirements.60

Although OCR gave high priority to ability grouping practices, it had not issued a single, 

coherent, and cohesive policy guidance document or investigative manual to assist legal and 

investigative staff working on Title VI ability grouping compliance reviews and complaint 

investigations. In addition, OCR had not issued guidance or other materials to schools seeking to 

ensure that their ability grouping practices complied with Title VI. Based on this finding, the 

Commission recommended that OCR update, finalize, and formally issue the draft documents, 

such as “Investigative Plan: Ability Grouping Compliance Review,” on ability grouping 

practices and develop an investigative manual similar to the draft manual on the 

underrepresentation of female and minority students in upper-level math and science classes.61

OCR still has not issued “Investigative Plan: Ability Grouping Compliance Review” in 

final form because, it says, guidance in this area can be found in Title VI regulations, case law, 

and existing policy.62 

Neither the Title VI regulations nor any OCR policy or technical assistance document 

defined “ability grouping.” The Commission recommended that OCR define the term in a Title 

VI ability grouping policy or technical assistance document.63 

OCR’s “Elementary and Secondary School Survey,” currently on OCR’s Web site,

defines ability grouping “as the pedagogical practice of separating students into different 

classrooms within a grade based on their estimated achievement or ability levels.”64 OCR’s 

pamphlet, “Student Assignment in Elementary and Secondary Schools and Title VI,” also 

provides a definition.65

Although Section 504 statutory language used the term “individual with a disability,” 

OCR retained references to “handicapped persons” throughout the corresponding regulations.66

The Commission recommended that if DOEd/OCR reviews Section 504 regulations, the phrase 

“qualified handicapped persons” be modified to conform to the current language of the statute.67

OCR has not yet undertaken this task and is focusing its resources on other competing 

priorities. According to OCR, incorporating the new statutory language would require more than 

 

60 Ibid., p. 19. 

61 USCCR, Federal Enforcement of Title VI in Ability Grouping Practices, p. 121. 

62 DOEd Interrogatory, p. 19. 

63 USCCR, Federal Enforcement of Title VI in Ability Grouping Practices, p. 121. 64 DOEd Interrogatory, p. 19. This document can be accessed at <http://205.207.175.80/ocrpublic/wdsdef98.thml# 

ability> (last accessed May 12, 2004). 

65 DOEd Interrogatory, p. 19. This pamphlet can be accessed at <http://www.ed.gov/about/offices/list/ocr/docs/ 

tviassgn.html> (last accessed Apr. 23, 2004). 

66 34 C.F.R. § 104.3(j) (2004). 

67 USCCR, Federal Enforcement of Section 504, p. 374. 
Staff Draft May 2004 21

technical amendments to the existing regulations and the appendix. Except when directly quoting 

the Section 504 regulations, OCR does use language consistent with the statute.68 

OCR had not produced policy specifically addressing students with disabilities who also 

have nondisability-related needs, such as giftedness and limited proficiency in English. Under 

Section 504, a recipient that operates a public elementary or secondary education program must 

provide a “free appropriate public education” (FAPE) to each qualified disabled person who is in 

the recipient’s jurisdiction regardless of the nature or severity of the person’s disability.69 The 

Commission recommended that OCR clarify the effect of Section 504 requirements on the 

nondisability-related needs of students who have disabilities and address the obligation to 

provide a free appropriate public education under Section 504 as it applies to students who have 

disabilities and who are also limited English proficient or gifted.70 

The Section 504 regulations explicitly express that a recipient’s obligation to provide a 

free appropriate public education extends to each qualified person with a disability in the 

recipient’s jurisdiction, regardless of the nature or severity of the person’s disability.71 OCR 

indicated that it declined to follow the Commission’s recommendation because the obligation 

applies fully to students with disabilities who are gifted and students with disabilities who also 

have limited English proficiency.72 In addition, OCR states that it has consistently required 

FAPE to gifted and limited-English-proficient students with disabilities.73 One of its current 

areas for compliance reviews is English language learners in special education. 

During its previous reviews, the Commission found that Section 504 regulations do not 

explicitly address whether schools are legally obligated to provide students with transition 

services as they move from high school to postsecondary education or the work world. The 

regulations do, however, mention such related issues as program accessibility in the context of 

entering postsecondary education programs. The Commission recommended that OCR create 

policy guidance on the right to transition services under Section 504 to prevent inconsistent 

decisions in the court system and to improve OCR’s compliance and enforcement efforts related 

to transition services.74

OCR has issued several pamphlets on postsecondary education of students with 

disabilities.75 “Postsecondary Students with Disabilities Preparing for Postsecondary Education: 

Know Your Rights and Responsibilities” is a question-and-answer document that helps inform 

individuals of their rights and responsibilities as they transfer from secondary to postsecondary 

 

68 DOEd Interrogatory, p. 20. 

69 USCCR, Federal Enforcement of Section 504, p. 386. 70 Ibid. 

71 34 C.F.R. § 104.4 (2004); DOEd Interrogatory, p. 22. 

72 DOEd Interrogatory, p. 22. 

73 U.S. Department of Education, Office for Civil Rights Comments on USCCR Draft 10-Year Review, p. 3. 

74 USCCR, Federal Enforcement of Section 504, p. 406. 75 DOEd Interrogatory, p. 23. 
Staff Draft May 2004 22

education as well as the responsibilities that postsecondary schools have for students.76 To ensure 

that students with disabilities participate effectively in the classroom, the pamphlet, “Auxiliary 

Aids and Services for Postsecondary Students with Disabilities,” offers information about a 

postsecondary school’s responsibility to provide auxiliary aids and services in a timely manner. 

In 2000, although OCR considered girls’ access to advanced mathematics and science 

education a high priority, it had not developed any major new policies relating to girls in math 

and science since adopting its strategic plan. In addition, in August 1994 OCR released its draft 

investigative manual, “Underrepresentation of Females and Minorities in Upper-Level 

Mathematics and Science in Secondary Schools.” The Commission recommended that OCR 

develop policy guidance that established clear criteria for ensuring equal educational 

opportunities for girls in advanced math, science, and technology. The Commission also 

recommended that OCR formally issue its investigative manual on the underrepresentation of 

female and minority students in upper-level math and science education.77

OCR still has not finalized the draft investigative manual, “Underrepresentation of 

Females and Minorities in Upper-Level Mathematics and Science in Secondary Schools.” In 

addition, OCR discontinued the document, “What Schools Can Do to Improve Math and Science 

Achievement by Minority and Female Students.” According to OCR, Title IX, its implementing 

regulations, current case law, and existing policy contain appropriate guidance on ensuring equal 

educational opportunities for girls in advanced math, science, and technology.78 

In 2000, the Commission also found in OCR’s draft guidance that it selected schools and 

districts for compliance reviews that had compliance problems and were more likely to operate 

their upper-level math and science programs in a manner that discriminated against females and 

minorities. The Commission recommended that OCR charge its Survey and Statistical Support 

Branch with obtaining and analyzing the data that would help identify potential compliance 

problems.79 

Although the Survey and Statistical Support Branch no longer exists, the Program Legal 

Group’s Team I carries out the data collection function. Team I collects data at the elementary 

and secondary levels on participation of females and minorities in advanced placement math and 

science programs. OCR’s enforcement offices have rapid access to unedited data on key issues 

and to final edited school district data within six months after the close of the school year.80

Among this section’s key points are: 

 OCR’s case resolution manual was last updated in 2001. 

 OCR has discontinued conducting Profile, Assessment, and Resolution reviews. 

 

76 U.S. Department of Education, Office for Civil Rights, “Students with Disabilities Preparing for Postsecondary 

Education: Know Your Rights and Responsibilities,” July 2002, pp. 1–9. The pamphlet can be accessed at 

<http://www.ed.gov/about/offices/list/ocr/transition.html> (last accessed May 12, 2004). 77 USCCR, Federal Enforcement of Title IX, p. 132. 78 DOEd Interrogatory, pp. 23–24. 

79 USCCR, Federal Enforcement of Title IX, p. 133. 80 DOEd Interrogatory, p. 24. 
Staff Draft May 2004 23

 In December 2000, OCR issued “The Use of Tests as Part of High-Stakes DecisionMaking for Students: A Resource Guide for Educators and Policy Makers,” but has since 

archived this resource guide. 

 OCR’s Web site is now accessible to the public. 

 OCR did not finalize the draft investigative manual, “Underrepresentation of Females and 

Minorities in Upper-Level Mathematics and Science in Secondary Schools,” because 

Title IX contains appropriate guidance. 

 The Survey and Statistical Support Branch no longer exists and the Program Legal 

Group’s Team I now carries out the data collection function. 

Technical Assistance 

In 1996, the Commission commended OCR for providing technical assistance both 

actively and proactively, but during later studies the Commission found that regional 

enforcement offices reduced the amount of technical assistance that was not part of compliance 

reviews.81 One of OCR’s primary technical assistance activities was the development and 

dissemination of “promising programs and practices” documents in high-priority areas.82 The 

Commission recommended that OCR issue promising practices in all its priority issue areas as 

formal technical assistance documents and update, expand, and distribute them more widely.83 

OCR continues to provide technical assistance to its customers upon request, although to 

the extent that there are adequate resources and no conflicting priorities. OCR offers proactive 

technical assistance with both case-related issues and with matters identified in the department’s 

strategic plan. For example, OCR works with school districts to help them develop good 

evaluation plans to ensure that language acquisition programs are research based and that ELL 

students are meeting performance standards; and provides outreach and technical assistance that 

focuses on encouraging ELL parents to actively participate in their children’s education.84

OCR no longer uses the term “promising practices,” but enforcement offices distribute 

guidance and information on educational issues. OCR refers callers and e-mail inquiries to its 

Web site, which contains information about civil rights issues as well as links to important DOEd 

educational sites. Publications and presentations can be downloaded from the Web site. Topics 

include, but are not limited to, “Frequently Asked Questions About Section 504 and the 

Education of Children with Disabilities”; “Harassment and the First Amendment”; and the 

“Transition From High School to College for Students with Disabilities” pamphlet.85 

 

81 USCCR, Federal Title VI Enforcement, p. 215; USCCR, Equal Educational Opportunity, Volume I, p. 261. 82 “Promising programs and practices” documents describe educationally valid models that have been implemented 

in school districts across the country and promote equal educational opportunity in the issue areas. OCR’s 

headquarters office assembles the teams of issue-area experts who prepare these documents for the regional 

enforcement offices to use as guides in developing remedial plans for school districts that are not in compliance with 

civil rights statutes. See USCCR, Equal Educational Opportunity, Volume I, p. 261. 

83 USCCR, Federal Enforcement of Title IX, p. 135. 

84 DOEd Interrogatory, p. 5. 

85 Ibid. 
Staff Draft May 2004 24

The Commission found that before the May 1996 reorganization, OCR had formed the 

Lau Working Group, composed of headquarters and regional staff considered subject-matter 

experts, and created informational materials for regional compliance specialists and state and 

local school district personnel. This working group provided outreach, education, and technical 

assistance on an informal, “whenever time allowed” basis to school districts to improve their 

understanding of their legal responsibilities to students with limited English proficiency. 

Furthermore, under the May 1996 reorganization, all Lau Working Group functions were 

assigned unofficially to the program legal teams within headquarters, despite the importance of 

technical assistance activities. The Commission also found that OCR had failed to issue its 

“promising practices” document as a formal technical assistance manual and that no reports 

based on the meetings of its Lau Working Group had been issued. The working group had 

produced an abundance of technical assistance materials, such as the Lau glossary, newsletters 

covering new or noteworthy compliance issues, and legal and policy information. There was no 

cohesive means of presenting the information in these various documents. The Commission 

recommended that OCR (1) ensure that its staff assigned to technical assistance activities were 

performing these functions officially and not informally, “whenever time allowed”; (2) issue 

reports following Lau Working Group meetings; and (3) issue “promising practices” documents 

as formal technical assistance manuals to a wide audience, including school districts, educators, 

parents, and students.86 

The Lau Network replaced the Lau Working Group, composed of headquarters and 

regional staff. OCR has established other networks on different programmatic issues. The 

purpose of these networks is to build knowledge and expertise in an area; coordinate and 

enhance OCR’s ability to identify and obtain strong remedies; help OCR refine its case 

resolution approaches; and develop ways to monitor resolution agreements more effectively. 

Because networks are not formal organizational structures, they have no official authority or 

duties, nor do they conduct technical assistance. Some staff, however, have ongoing technical 

assistance responsibilities in their official positions. The networks coordinate with one another 

across subject areas. According to OCR, in FY 2003, the Lau Network members coordinated 

with representatives of the Minorities in Special Education Network to develop investigative and 

technical assistance tools to ensuring consistency in an OCR initiative, “Misclassification of ELL 

in Special Education.”87 

The networks do not issue reports on their meetings because their primary purpose is 

internal information sharing. Staff who work on the networks often help develop technical 

assistance materials, which are then cleared for dissemination to the public. 

OCR offers technical assistance to school districts with diverse student populations that 

address how to involve parents and community officials in school policies and programs. OCR 

has offered the following types of technical assistance addressing this issue: 

 Enforcement offices have talked with recipient staff about effective means for serving 

English language learners and their parents and communities in a presentation titled “Lau

 

86 USCCR, Federal Enforcement of Title VI and Lau v. Nichols, pp. 197–98, 230–31. 87 DOEd Interrogatory, p. 6. 
Staff Draft May 2004 25

and ELL Guide and Ensuring Equal Educational Opportunities for English Language 

Learners.” 

 OCR provided technical assistance to parent groups, advocacy groups, and school 

districts on parents’ and students’ rights, and districts’ obligations in the areas of Titles 

VI and IX, Section 504, and Title II of the Americans with Disabilities Act. 

 OCR made presentations to parents of ELL students in districts that have diverse 

populations on parents’ and students’ rights and responsibilities. 

 Enforcement offices initiated a technical assistance effort to help school districts 

encountering an influx of African American and Hispanic students devise effective 

means to address student-to-student racial harassment. 

 OCR provided information in English and other languages about its role in civil rights 

and how parents can ensure their ELL child’s inclusion in an education program.88 

Although the following guidance and information documents were all produced in 1996, 

they were never updated or issued formally: “Promising Programs and Practices for Recruiting 

and Retaining Minority and Other Disadvantaged Students at Postsecondary Institutions,” 

“Promising Programs and Practices: Access for Women and Minorities to Mathematics and 

Science Programs and Gifted and Talented Education Programs,” “Promising Practices and 

Programs for Serving National Origin Limited English Proficient Students,” and “Promising 

Practices and Programs to Prevent or Resolve Sexual or Racial Harassment.” These guidance and 

information documents are available to OCR staff for internal use, but because of competing 

priorities, OCR has decided not to issue these documents as formal technical assistance 

manuals.89 OCR’s current priority issues include (1) minorities in special education, with an 

emphasis on reading; (2) limited-English-proficient students in special education; (3) limitedEnglish-proficient parental involvement; (4) the transition of students with disabilities from 

secondary to postsecondary education; and (5) physical accessibility at postsecondary 

institutions.90

The Commission found that in 1996, OCR released a promising practices document titled 

“Access for Women and Minorities to Mathematics and Science Programs and Gifted and 

Talented Education Program.” In addition, OCR created a technical assistance brochure, “What 

Schools Can Do to Improve Math and Science Achievement by Minority and Female Students,” 

to help schools comply with civil rights requirements and promote equal educational opportunity 

for girls and minorities in advanced math and science. The Commission recommended that OCR 

update and expand these documents and distribute them widely to elementary and secondary 

schools and not wait until it schedules technical assistance presentations to distribute them.91

Although OCR did not update “Access for Women and Minorities to Mathematics and 

Science Programs and Gifted and Talented Education Programs,” it is available to OCR staff for 

 

88 Ibid., p. 7. 

89 Ibid. 

90 Stephen Cramolini, special assistant, Office of the Deputy Assistant Secretary for Enforcement, U.S. Department 

of Education, e-mail, Mar. 8, 2004. 

91 USCCR, Federal Enforcement of Title IX, p. 135. 
Staff Draft May 2004 26

internal use.92 OCR has no plans to update this document because of competing priorities. “What 

Schools Can Do to Improve Math and Science Achievement by Minority and Female Students” 

has been discontinued and is no longer posted on DOEd’s Web site. 

Among this section’s key points are: 

 OCR continues to provide technical assistance to its customers upon request. 

 Aside from the Lau Network OCR established other networks on different programmatic 

issues, such as minorities and students with disabilities in special education. 

 The networks do not issue reports because their primary purpose is internal information 

sharing. 

Education and Outreach 

The Commission commended OCR for active and effective public outreach and 

education on Title VI.93 However, in Volumes II, III, IV, and V of its Equal Educational 

Opportunity Series, the Commission recommended that OCR (1) provide additional outreach and 

education to help state and local education agencies develop “grow their own” teacher programs; 

(2) develop additional outreach and education materials that discuss the “least restrictive 

environment”; (3) conduct more education activities on the re-evaluation requirements under the 

Individuals with Disabilities Education Act (IDEA);94 and (4) use letters of findings as a means 

to disseminate to state and local school district officials the basis for the civil rights obligations 

Congress created in Title IX.95

OCR uses a variety of formats to initiate education and outreach, including its Web site. 

According to OCR, funding recipients often attend conferences where staff regularly make 

presentations, which in turn leads to further opportunities for education and outreach. For 

example, within the past year OCR made numerous presentations throughout the country to state 

officials, recipients at the secondary school level, community colleges and traditional 

postsecondary institutions, parent advocacy organizations, independent living centers, and parent 

and students on how students with disabilities transit from high school to college. In addition, 

OCR conducted Titles VI and IX conferences in which large numbers of recipients have shared 

successful practices and strategies. For example, OCR provided a forum for colleges to inform 

one another on best practices for educating students with psychiatric disabilities. Each 

enforcement office has procedures for responding promptly to OCR customer inquiries whether 

through phone, mail, or e-mail.96 

 

92 DOEd Interrogatory, p. 8. 

93 USCCR, Federal Title VI Enforcement, p. 215. 

94 Pub L. No. 101-476, 104 Stat. 1103 (codified as amended at 20 U.S.C. §§ 1400–1485 (2004)). 

95 USCCR, Federal Enforcement of Title VI and Lau v. Nichols, p. 228; USCCR, Federal Enforcement of Title VI in 

Ability Grouping Practices, p. 126; USCCR, Federal Enforcement of Section 504, pp. 382–83, 388; USCCR, 

Federal Enforcement of Title IX, p. 135. 96 DOEd Interrogatory, p. 9. 
Staff Draft May 2004 27

OCR conducts more outreach, education, and technical assistance activities to encourage 

state and local education agencies to develop teacher programs that provide bilingual/ESL 

training to staff when an investigation shows compliance problems. When OCR discovers 

compliance problems, it may suggest corrective action that involves teacher education. For 

example, OCR held discussions concerning remedial actions to increase the number of trained 

bilingual/ESL staff where staff shortages have resulted in a denial of services. The topic of 

teacher competency has been part of the overall program at regional conferences on ELL 

students. Under appropriate circumstances, OCR has encouraged states with bilingual instructor 

shortages to use various state programs that encourage temporary assignments for qualified nonU.S. teachers. OCR has also helped states create an ESL endorsement to encourage local 

colleges to offer more ESL and tuition reimbursement programs for ESL endorsements.97 

To assist in providing compliance standards for the least restrictive environment 

requirement, in 1998 OCR updated its pamphlet, “Student Placement in Elementary and 

Secondary Schools and Section 504 and Title II of the Americans with Disabilities Act,” which 

is available on OCR’s Web site.98 The pamphlet lists elements, such as evaluation and placement 

procedures, educational setting, and re-evaluations that must be considered when assigning 

students with disabilities to the least restrictive educational setting appropriate to their needs.99 

In conducting technical assistance for Section 504, OCR covers re-evaluation 

requirements. The Section 504 regulations provide that periodic re-evaluations of students with 

disabilities must be conducted, and that a re-evaluation conducted in accordance with the 

Education of the Handicapped Act (now IDEA) is one way to meet this requirement.100 OCR has 

no enforcement responsibilities for the IDEA, but staff rely on the IDEA and its implementing 

regulations, as well as letters of policy clarification, when providing guidance on the reevaluation process. 

As a general rule, OCR does not use its resolution letters, including letters of findings, for 

disseminating information about the basis for the civil rights obligations Congress created in 

Title IX. OCR’s resolution letters are intended to clearly explain OCR’s jurisdictional authority 

to investigate Title IX complaints and the legal analysis it applies. To advise state and local 

school districts about Title IX and to provide clear and precise explanations of the civil rights 

laws, regulations, and policies on which OCR bases its compliance and enforcement activities, 

OCR relies on policy documents such as “Dear Colleague” letters and informational pamphlets 

and brochures.101 OCR uses “Dear Colleague” letters to communicate information 

simultaneously to a large number of similar recipients, such as college and university presidents 

or elementary and secondary school superintendents. 

 

97 Ibid., pp. 9–10. 

98 See <http://www.ed.gov/about/offices/list/ocr/docs/placpub.html> (last accessed Apr. 19, 2004). 

99 U.S. Department of Education, Office for Civil Rights, “Student Placement in Elementary and Secondary Schools 

and Section 504 and Title II of the Americans with Disabilities Act,” <http://www.ed.gov/about/offices/list/ocr/ 

docs/placpub.html> (last accessed May 12, 2004). 

100 34 C.F.R. § 104.35(d) (2004); DOEd Interrogatory, p. 11. 

101 DOEd Interrogatory, p. 11. 
Staff Draft May 2004 28

Among this section’s key points are: 

 Each enforcement office has procedures for responding to OCR customer inquiries 

whether by phone, mail, or e-mail.

 OCR uses “Dear Colleague” letters to communicate information to a large number of 

similar recipients.

Compliance Reviews 

In past studies, the Commission found that DOEd’s pre-award review system was 

extremely limited. Because pre-award reviews were conducted for only one of DOEd’s federally 

assisted programs, recipients received funding without OCR ensuring, beforehand, that they were 

in compliance with Title VI. As a result, the Commission recommended that DOEd use the 

information required of applicants for DOEd funding to conduct pre-award desk-audit reviews of 

applicants before granting assistance.102

OCR generally does not conduct pre-award reviews and continues to only conduct them 

for the Magnet Schools Assistance Program. OCR has determined that pre-award reviews are not 

effective compliance tools.103

DOEd did not have a system in place to conduct post-award desk-audit reviews as an 

alternative to on-site compliance reviews. The Commission recommended that OCR implement a 

system of post-award desk-audit reviews of recipients, including local school districts and 

colleges and universities. The post-award desk-audit reviews should be used to uncover obvious 

violations of Title VI and to select recipients for on-site compliance reviews.104

OCR still does not have a system to conduct post-award desk-audit reviews, but does do 

post-award compliance reviews. According to OCR, there are no plans to start conducting postaward desk-audit reviews.105 

In 1996, the number of compliance reviews OCR performed had barely increased over 

the years, implying that most DOEd recipients could expect never to be reviewed. As a result, 

recipients were not compelled to comply voluntarily with Title VI in anticipation of an OCR 

review. The Commission recommended that although OCR should continue to conduct on-site 

compliance reviews based on priority issues, it also should conduct comprehensive reviews that 

assessed a recipient’s entire operations, not only compliance on priority issues.106 The 

Commission also recommended that OCR expand its selection process for compliance reviews to 

include more input from parents and students.107

 

102 USCCR, Federal Title VI Enforcement, p. 213. 

103 DOEd Interrogatory, p. 25. 

104 USCCR, Federal Title VI Enforcement, p. 214. 105 DOEd Interrogatory, p. 26. 

106 USCCR, Federal Title VI Enforcement, p. 214. 107 USCCR, Equal Educational Opportunity, Volume I, p. 260. 
Staff Draft May 2004 29

OCR initiated fewer compliance reviews between FY 1998 and 2002 due to an increased 

monitoring workload.108 According to OCR, between FY 1994 and 1998 it resolved 681 

compliance reviews, compared with 362 in the previous five fiscal years between 1989 and 

1993.109 This large number of resolved reviews created an enormous monitoring workload for 

OCR staff. With complaints rising, OCR needed to cut back on compliance reviews.110 The 

number of initiated compliance reviews is again rising. OCR initiated 74 compliance reviews in 

FY 2003, compared with 11 in 2002 (see table 2.2). 

TABLE 2.2 

DOEd/OCR Compliance Reviews, 1998–2003 

Fiscal year Initiated Resolved 

1998 102 100 

1999 76 93 

2000 47 71 

2001 21 43 

2002 11 18 

2003 74 

Source: U.S. Department of Education, Office for Civil Rights, “Annual Report to Congress 

Fiscal Years 2001 and 2002,” July 2003, p. 2; DOEd Interrogatory, p. 27. 

OCR’s on-site reviews are still based on priority issues because its resources are not 

infinite and it must choose its issues based on how many compliance reviews staff can conduct. 

OCR believes that concentrating available resources on high-priority issues optimizes 

productivity.111 

OCR enforcement offices typically do not solicit input from parents or students when 

selecting sites for compliance reviews because they likely lack the necessary policy, procedural, 

and services perspective to determine whether a site is suitable for review. Occasionally, OCR 

has contacted membership organizations directly affected, for example, parent groups. As 

reviews are being conducted, OCR enforcement offices will talk with parents and students either 

in interviews or focus group settings.112 

In the early 1990s, the Commission found that many Asian American immigrant children, 

particularly those with limited English proficiency, were deprived of equal access to educational 

opportunity. Available information suggested that American immigrant children were leaving 

public schools with serious deficiencies, particularly in the areas of reading and writing, and that 

some subgroups had high dropout rates.113 The Commission recommended that OCR step up its 

enforcement of Title VI’s Lau requirements for instruction for students with limited English 

 

108 DOEd Interrogatory, p. 26. 

109 DOEd/OCR, “2001 and 2002 Annual Report”; DOEd Interrogatory, p. 27. 

110 DOEd Interrogatory, p. 27. 

111 Ibid., p. 33. 

112 Ibid., p. 28. 

113 USCCR, Asian Americans in the 1990s, pp. 194–95. 
Staff Draft May 2004 30

proficiency. In particular, OCR should carry out more compliance reviews on adherence to the 

Lau guidelines. 

OCR indicates that its enforcement offices have conducted hundreds of Title VI/Lau

reviews throughout the country since the Commission’s 1992 report. These reviews have been 

conducted on schools of every size and at all enrollment levels. Because of the close cooperation 

between OCR and state officials, OCR’s activity in the Lau area is visible to states and their 

school districts. Throughout 2003, although OCR conducted Lau technical assistance activities, it 

continued to receive complaints regarding Lau activities. OCR continues to investigate these 

complaints.114

One of the key objectives of the No Child Left Behind Act and the DOEd strategic plan is 

to ensure that English language learner students meet rigorous standards.115 OCR has been 

monitoring the implementation of resolution agreements from more than 200 school districts to 

ensure that they (1) have a means for effective program evaluation; (2) are evaluating their 

English language acquisition programs and the performance of ELL students and former ELL 

students; and (3) are making changes as needed to meet their education goals for these 

students.116 According to OCR, one of its high-priority national issues for compliance reviews is 

the placement of ELL students in special education.117

In 2000, the Commission found that OCR conducted only a handful of compliance 

reviews and complaint investigations based on Title IX and girls’ access to and participation in 

advanced math and science education. The Commission also found that OCR had not specifically 

addressed within-class and between-class pupil placement methods to ensure nondiscrimination 

in math and science in its Title IX regulations. The Commission recommended that OCR 

increase the number of Title IX compliance reviews focusing on girls’ access to advanced math 

and science. In addition, it recommended that OCR examine within-class and between-class 

student placement practices to determine if they are having an adverse effect on girls’ 

participation rates in upper-level math and science classes.118 

The Commission now finds that due to competing priorities, OCR is not conducting 

compliance reviews on girls’ access to and participation in advanced math and science education. 

In addition, OCR did not conduct any within-class and between-class student placement 

practices reviews in the recent past. OCR does not plan to perform any such reviews in the near 

future. OCR provides technical assistance, makes presentations, responds to inquiries, and 

 

114 DOEd Interrogatory, p. 27. 

115 DOEd/OCR, “2001 and 2002 Annual Report,” p. 10. On January 8, 2002, the President signed into law the No 

Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (codified at 20 U.S.C. §§ 6301–6777 (2004)). 

The act contains provisions to ensure that all children will have access to a high-quality education regardless of race, 

ethnicity, sex, disability, or socioeconomic status. This landmark legislation embodies four key principles: strong 

accountability for results; greater flexibility for states, school districts, and schools in the use of federal funds; more 

choice for parents; and an emphasis on teaching methods that have been demonstrated to work. 

116 DOEd/OCR, “2001 and 2002 Annual Report,” p. 10. 

117 DOEd Interrogatory, p. 27. 

118 USCCR, Federal Enforcement of Title IX, pp. 134, 146. 
Staff Draft May 2004 31

investigates complaints to ensure against gender bias. In addition, OCR provides guidance to 

recipients and students through Title IX, its regulations, case law, and existing policy.119 

Among this section’s key points are: 

 Because OCR believes that pre-award reviews are not effective compliance tools, it 

conducts reviews only for the Magnet Schools Assistance Program. 

 OCR continues to conduct only post-award compliance reviews and there are no plans to 

start conducting post-award desk-audit reviews. 

 Between FY 2002 and 2003, the number of initiated compliance reviews increased 573 

percent. 

 OCR’s on-site reviews are still based on priority issues because of finite resources. 

 OCR no longer conducts compliance reviews on girls’ access to and participation in 

advanced math and science education. 

Deficiencies, Remedies, and Sanctions 

In the past, the Commission commended DOEd for the degree to which it used 

administrative and other options available to compel compliance with Title VI. The Commission 

indicated that DOEd stood out as the only agency that made more than infrequent use of its fund 

termination authority. It recommended that other federal agencies emulate DOEd and make 

effective use of all the enforcement options available to them.120

OCR has been able to secure compliance through voluntary agreements with recipients 

where compliance concerns have been found. OCR issues a formal letter of violation if a 

recipient refuses to enter into a voluntary agreement. If the recipient still refuses to remedy the 

violation, OCR either files a “Notice of Opportunity for Hearing” to initiate fund termination 

proceedings, or refers the violation to DOJ for judicial enforcement. Between 1996 and 2003, 

although OCR did not defer or terminate federal financial assistance, it initiated fund termination 

hearings under Section 504 against two recipients. OCR also referred two cases to DOJ for 

judicial enforcement.121

Among this section’s key points is: 

 Between 1996 and 2003, OCR initiated fund termination hearings against two recipients. 

Staff Training 

OCR had not developed a comprehensive staff training strategy or plan to ensure that all 

staff were afforded regular and thorough training on civil rights statutes, regulations, guidelines, 

policies, and enforcement procedures. As a result, the Commission recommended that OCR 

 

119 DOEd Interrogatory, p. 29. 

120 USCCR, Federal Title VI Enforcement, pp. 214, 216. 

121 DOEd Interrogatory, p. 32. The two cases referred to DOJ for judicial enforcement were (1) under Section 504, 

Davis Joint Unified School District and (2) under Title VI, Denver Public Schools. 
Staff Draft May 2004 32

prepare a comprehensive staff training plan; and provide new staff with formal training on all the 

civil rights statutes DOEd enforces, on DOEd’s federally assisted programs, and on DOEd’s 

regulations, policies, guidelines, and enforcement procedures. The Commission also 

recommended that DOEd base its staff training plan on an assessment of the training needs of all 

staff and allocate specific budgetary resources to staff training.122 

Each OCR enforcement office has at one time or another developed a comprehensive 

training program based on staff input and aligned with specific training needs in each office. 

When providing training, OCR uses a variety of sources and methods, such as classroom 

instruction, mock investigations, audio and videotapes, professional trainers, in-house experts, 

and study groups.123 

According to OCR, DOEd encourages its staff to develop individual training plans and 

offers courses on management and skills training. OCR encourages its enforcement staff to 

attend conferences and meetings relevant to their work. Recent training topics included 

interviewing skills, negotiation skills, telephone skills, accessibility of facilities, individualized 

instruction, evidence, sexual harassment, and First Amendment requirements.124 

By jointly conducting case processing activities, the chief attorney and/or chief program 

officer provides new staff with basic or intermediate case processing techniques. New staff also 

receive hands-on work on cases assigned to their case processing teams. Training covers all civil 

rights statutes and regulations that OCR enforces, and is updated as needed.125 

OCR provides refresher training to its staff. Current staff are invited to participate in new 

staff training. There are also mentoring programs for less experienced staff. For each fiscal year, 

enforcement offices identify training opportunities for staff and develop a training schedule. 

Internal training provided to staff includes forums or seminars on frequently raised legal issues. 

OCR provides refresher legal training during monthly attorney meetings. OCR staff sometimes 

attend civil rights seminars that outside groups such as the Departments of Justice and 

Agriculture and state and local bar associations offer, and conferences that publishers provide. 

OCR also invites outside speakers to host staff training on emerging civil rights issues and 

investigative techniques. Staff may also utilize the Regional Training Centers’ training and 

career development resources.126 

OCR has consistently allocated hundreds of thousands of dollars for training. Between 

FY 1997 and 1999, OCR’s training budget increased 512 percent. In 2000, the OCR training 

budget decreased 7 percent, from $612,000 to $570,000. Funding allocated for training also 

decreased in 2001 and 2002. For 2003, OCR’s training budget increased by $22,000 or 5.1 

percent (see table 2.3). 

 

122 USCCR, Federal Title VI Enforcement, p. 216. 123 DOEd Interrogatory, p. 33. 

124 Ibid. 

125 Ibid. 

126 Ibid., pp. 33–35. 
Staff Draft May 2004 33

TABLE 2.3 

DOEd/OCR Training Budget, 1997–2003 

Fiscal year Amount 

1997 $100,000 

1998 $456,000 

1999 $612,000 

2000 $570,000 

2001 $502,000 

2002 $431,000 

2003 $453,000 

Source: DOEd Interrogatory, p. 34.

OCR communicates emerging civil rights issues to its staff using a variety of methods. 

The Assistant Secretary’s Lecture Series uses teleconferencing or video conferencing to present 

enforcement offices with speakers on current issues.127 At monthly general staff meetings OCR 

discusses important developments, and most enforcement offices conduct regular meetings for 

attorneys and investigators, as well as internal forums with experts from within OCR and outside 

organizations. Informal brown bag lunches and roundtable discussions are also held to keep staff 

up to date. DOEd provides issue forums on its intranet for all staff as participants or leaders. 

Networks, composed of headquarters and regional staff who are subject-matter experts, are 

available for discussions on such topics as Title IX and athletics, disabilities, racial harassment, 

desegregation, testing, and Lau and minorities in special education. 

The Commission recommended that OCR incorporate hands-on training techniques and 

mock investigations into its staff training, which would assist in developing skills and ensure that 

OCR’s policies are effectively applied. The Commission recommended that OCR work with the 

program offices to share resources and materials and to identify contractors to provide the 

training.128

OCR now incorporates hands-on training techniques and mock investigations into its 

staff training. During 2003, OCR held a three-day seminar on interviewing techniques, which 

included mock interviews and role playing. The Department of Justice’s advocacy-training 

program for attorneys also provides hands-on training techniques. To keep staff abreast of 

emerging issues, issue networks conduct monthly teleconferences. For example, the Lau

Network has arranged for education experts to offer training on enhancing educational 

opportunities for limited-English-proficient students. The Disability Network, composed of 

representatives from OCR headquarters and enforcement offices throughout the country, 

conducts monthly teleconferences on Section 504 and Title II of the Americans with Disabilities 

Act enforcement. The Disability Network periodically hosts guest speakers from the field as well 

as representatives from other offices within DOEd, including the Office of Special Education 

Programs and the Office of Elementary and Secondary Education.129 

 

127 Ibid., p. 35. 

128 USCCR, Equal Educational Opportunity, Volume I, p. 263. 

129 DOEd Interrogatory, pp. 35–36. 
Staff Draft May 2004 34

Among this section’s key points is: 

 OCR has consistently allocated hundreds of thousands of dollars for training, although 

the training budget decreased between FY 1999 and 2002. 

Oversight and Quality Assurance 

In 1996, the Commission found that oversight of continuing state programs was one of 

the weakest areas of DOEd’s Title VI compliance and enforcement program. The Commission 

recommended that OCR require each state to submit methods of administration and annual Title 

VI self-assessments. In addition, the Commission recommended that OCR provide states with 

program-specific guidance on the necessary elements of acceptable methods of administration 

and technical assistance to help them come into compliance. The Commission also 

recommended that OCR conduct periodic comprehensive on-site reviews of each state’s Title VI 

compliance program to uncover any problems not revealed in the Title VI self-assessments.130 

DOEd still administers the guidelines HEW issued in 1979. These guidelines, which are 

still in effect, require states to submit their vocational education methods of administration.131 

The Commission commended DOEd for its data collection and analysis system and 

indicated that it was superior to that of other federal agencies. At that time, OCR had a 

headquarters office—the Planning, Analysis, and Systems Service—assigned to maintain and 

analyze civil rights data. The Commission recommended that DOEd continue to place 

appropriate emphasis on data collection and analysis as integral parts of civil rights compliance 

and enforcement.132 

The Planning, Analysis, and Systems Service no longer exist. Currently, the Program 

Legal Group, within the Office for Civil Rights, collects and maintains civil rights data and 

provides analyses to OCR’s enforcement offices. In the future, DOEd’s Performance Based Data 

Management Initiative will collect and maintain OCR data. DOEd continues to collect and 

analyze data on the treatment of participants by race, color, and national origin. In addition to the 

aforementioned data, OCR and DOEd’s Institute of Education Sciences and National Center for 

Education Statistics (NCES) collect a wide variety of other data.133 

In 1992, the Commission found that the admit rates of Asian American students to elite 

colleges and universities fell at a time when the number of Asian American applicants to these 

colleges and universities was increasing rapidly. Charges that colleges and universities were 

placing ceilings on the numbers of Asian American students admitted, and that Asian American 

applicants were discriminated against in the admissions process relative to white applicants were 

made with increasing frequency. As a result, the Commission recommended that OCR require 

colleges and universities covered under Title VI to regularly provide OCR with data on the racial 

and ethnic breakdown and qualifications of applicants and admitted students. The Commission 

 

130 USCCR, Federal Title VI Enforcement, pp. 215–16. 131 DOEd Interrogatory, p. 36. 

132 USCCR, Federal Title VI Enforcement, p. 216. 133 DOEd Interrogatory, p. 30. 
Staff Draft May 2004 35

recommended that OCR use these data in deciding whether to initiate Title VI compliance 

reviews of these institutions.134 

The Commission now finds that OCR coordinates with NCES to require that data be 

collected on students enrolled in postsecondary institutions, but institutions are not required to 

collect data on applicants to these institutions.135 NCES makes its Integrated Postsecondary 

Education Data System available to the public through its Web site.136 

DOEd data were displayed by students’ race or ethnicity in crucial areas, such as 

demographic characteristics, enrollment of students in particular educational settings, measures 

of achievement, and indicators of attainment. But the presentation of these data was generally 

limited to reporting on students who were white, black, or Hispanic. Data were lacking in these 

crucial areas for Asian Americans, Native Americans, and other national origin groups. The 

Commission recommended that documents of all DOEd entities that contain data include 

information on national origin groups, such as Asian Americans and Native Americans.137 

DOEd/OCR has undertaken the task of providing adequate data on the demographic 

characteristics, educational experiences, measures of educational achievement, and indicators of 

attainment for Asian Americans, Native Americans, and students of other national origins. OCR 

collects these data at the elementary and secondary levels and coordinates with NCES to collect 

such data at the postsecondary level.138 

Among this section’s key points are: 

 DOEd continues to collect and analyze data on the treatment of participants by race, 

color, and national origin. 

 OCR coordinates with NCES to require that data be collected on students enrolled in 

postsecondary institutions. 

Coordination 

Aside from its memorandum of understanding (MOU) with the Office of Special 

Education and Rehabilitative Services (OSERS), OCR had little formal communication with the 

other program offices within DOEd. Although the Commission commended OCR for the MOU 

with OSERS, it recommended that whenever appropriate OCR continue its interaction with 

DOEd’s program offices, such as the Office of Bilingual Education and Minority Languages 

Affairs, the Office of Elementary and Secondary Education, and the Office of Educational 

Research and Improvement.139

 

134 USCCR, Asian Americans in the 1990s, pp. 195, 197. 

135 DOEd Interrogatory, p. 31. 

136 See <http://www.ed.gov/nces/ipeds> (last accessed Apr. 21, 2004). 137 USCCR, Equal Educational Opportunity, Volume I, p. 249. 

138 DOEd Interrogatory, p. 31. 

139 USCCR, Equal Educational Opportunity, Volume I, p. 248. 
Staff Draft May 2004 36

Although OCR continues its interaction with DOEd’s program offices, it has not 

identified the need for any additional memoranda of understanding with other program offices.140

Except for the Disability Coordinating Council, no similar coordinating council existed 

for other civil rights statutes that OCR enforced, such as Titles VI and IX.141 As a result, the 

Commission recommended that DOEd and OCR, along with DOJ, establish interagency 

coordinating councils for the other civil rights statutes. 

DOJ established the Interagency Working Group on Limited-English Proficiency in 

December 2001. Members of the working group represent more than 35 federal agencies. The 

working group’s mission is to build awareness of the need and methods to ensure that limitedEnglish-proficient persons have meaningful access to important federal and federally assisted 

programs. OCR serves on the steering committee of the working group.142 

Among this section’s key points is: 

 OCR serves on the steering committee of the Interagency Working Group on LimitedEnglish Proficiency. 

Output Evaluation 

OCR’s outcomes measurement is process oriented; that is, it does not apply social or 

behavioral science methods, or public surveys to evaluate its success in eradicating 

discrimination.143 Furthermore, OCR has neither planned nor implemented means to distinguish 

its activities’ individual effect on the organization’s efficiency and effectiveness or the overall 

goal of eradicating discrimination.144 OCR expresses as its goal to ensure equal access to 

education and promote educational excellence throughout the nation through the vigorous 

enforcement of civil rights. To meet that goal, OCR has developed the following two objectives: 

(1) to eliminate discriminatory educational practices within schools, and (2) to obtain results 

through efficient management of civil rights compliance activities. Under these two objectives, 

OCR has developed performance evaluation factors in response to the requirements of the 

Government Performance and Results Act (GPRA).145 

To evaluate its goal to eliminate discrimination in schools, OCR measures the percentage 

of technical assistance it provides to recipients and the percentage of technical assistance it 

provides to parents. For FY 2003, OCR established a performance target that 50 percent of its 

technical assistance materials would help recipients identify and fulfill federal civil rights 

obligations. OCR’s actual performance exceeded its target. OCR also set a performance target 

 

140 DOEd Interrogatory, p. 37. 

141 USCCR, Equal Educational Opportunity, Volume I, p. 250. 

142 DOEd Interrogatory, p. 37. 

143 Social or behavioral science methods include laboratory experiments, field experiments, analysis of observational 

data and natural experiments, and survey and administrative records reports. 

144 DOEd Interrogatory, p. 38. 

145 Pub. L. 103-62, 107 Stat. 285 (codified as amended in scattered sections of 31 U.S.C. and 39 U.S.C. (2004)). 
Staff Draft May 2004 37

that 20 percent of its materials would assist parents in understanding recipients’ federal civil 

rights obligations. Again, OCR exceeded its target (see table 2.4). 

OCR also sets goals for obtaining results through efficient management of civil rights 

compliance activities. OCR measures the percentage of complaints resolved within 180 days of 

receipt. In each year between FY 2001 and 2003, OCR exceeded its performance target of 

resolving 80 percent of its complaints within 180 days (see table 2.4). According to OCR, in FY 

2003, 91 percent of complaints were resolved within 180 days of receipt. Although OCR has 

continuously exceeded its performance targets since 2001, the performance target for FY 2004 

remains at 80 percent. 

OCR uses the above performance indicators in its strategic self-evaluation and also in the 

annual budget request to OMB.146 OMB and Congress measure OCR’s effectiveness by 

reviewing its ability to meet these indicators.147 

TABLE 2.4 

DOEd/OCR Performance Indicators, FY 2000–2004 

Performance indicators Actual 

performance 

Performance 

targets 

Percentage of OCR materials that assist recipients in 

identifying and addressing federal civil rights obligations 

 

 2003 76 50 

 2004 – 50 

 

Percentage of OCR materials that assist parents in 

understanding recipients’ federal civil rights obligations 

 

 2003 40 20 

 2004 – 20 

 

Percentage of complaints resolved within 180 days of receipt 

 2000 78 80 

 2001 84 80 

 2002 89 80 

 2003 91 80 

 2004 – 80 

Source: DOEd Interrogatory, pp. 39–41. 

Among this section’s key points is: 

 OCR has continuously exceeded its performance target in terms of the percentage of 

complaints it resolves within 180 days of receipt. 

 

146 DOEd Interrogatory, p. 38. 

147 Ibid., p. 41. 
Staff Draft May 2004 38

Conclusion 

Between 1992 and 2000, the Commission reviewed OCR numerous times and issued 

recommendations that could potentially enhance its enforcement efforts. During those reviews, 

the Commission applauded OCR for its model organizational structure; its aggressive use of 

administrative and other options to necessitate Title VI compliance; its ability to actively and 

effectively conduct Title VI education and outreach and technical assistance; and its superior 

data collection and analysis system. Today, the assistant secretary continues to report to the 

secretary and the deputy secretary, but OCR’s top three positions are vacant; one has been vacant 

since December 2002. OCR continues to use administrative and other options available to 

compel Title VI compliance. Between 1996 and 2003, OCR did not defer or terminate federal 

financial assistance, but it did initiate fund termination hearings against two recipients. OCR also 

referred two cases to DOJ for judicial enforcement. OCR continues to provide technical 

assistance and education and outreach on the following priority issues: (1) minorities in special 

education; (2) limited-English-proficient students in special education; (3) limited-Englishproficient parental involvement; and (4) the transition of students with disabilities from 

secondary to postsecondary education. 

During its reviews, the Commission also found weaknesses in OCR’s enforcement 

practices. The Commission noted the absence of manuals for explaining procedures for Title VI 

compliance and review processes; the inaccessibility of DOEd/OCR’s database to the public; 

OCR’s limited use of pre-award reviews; and the decline in the number of initiated compliance 

reviews. OCR updated its case resolution manual in 2001, but the manual does not delineate 

procedures for pre-award or post-award reviews, nor does it contain separate sections for 

conducting compliance reviews for different types of DOEd programs. OCR’s Web site is now 

accessible to the public and provides current education and technical assistance materials and 

some policy and investigative guidance documents. OCR continues to conduct only pre-award 

reviews for the Magnet Schools Assistance Program and has determined that pre-award reviews 

are ineffective compliance tools. Between FY 1998 and 2002, the number of initiated 

compliance reviews declined from 102 to 11. More recently, however, the number of reviews has 

sharply increased. Between FY 2002 and 2003, initiated compliance reviews jumped 573 

percent. OCR relies on process-oriented evaluation factors of its success toward reaching goals 

instead of applying social or behavioral science methods.
Staff Draft May 2004 39

Chapter 3: Equal Employment Opportunity Commission 

President Lyndon B. Johnson signed the Civil Rights Act of 1964,1 which among other 

things, created the Equal Employment Opportunity Commission (EEOC). The agency began 

operating on July 2, 1965. According to the EEOC founding statute, as amended in 1972, the 

United States President, with the consent of the Senate, appoints EEOC’s five commissioners for 

five-year, staggered terms and the general counsel for a four-year term.2 

Acronyms are used throughout this chapter. Table 3.1 lists those referenced frequently. 

TABLE 3.1 

Acronyms in Chapter 3

Age Discrimination in Employment Act ADEA 

Alternative Dispute Resolution ADR 

Americans with Disabilities Act of 1990 ADA 

Annual Performance Plan APP 

Comprehensive Enforcement Plan CEP 

Fair Employment Practices Agencies FEPA 

Government Performance and Results Act GPRA 

National Academy of Public Administration NAPA 

Office of Legal Counsel OLC 

Priority Charge Handling Procedures PCHP 

Research and Analytic Services RAS 

Revolving Fund RF 

Technical Assistance Program Seminars TAPS 

U.S. Equal Employment Opportunity Commission EEOC 

Previous Commission Reviews of EEOC 

Since 1992, the U.S. Commission on Civil Rights has released four reports examining 

EEOC’s enforcement of federal equal employment laws and made 199 recommendations. A 1992 

report contained 11 recommendations on ways in which EEOC could improve how it handled fair 

employment problems.3

 A 1993 report made eight recommendations on how the agency could 

better eradicate employment discrimination in the federal sector.4

 A 1998 report outlined EEOC’s 

specific failings in its implementation and enforcement of the Americans with Disabilities Act 

 

1

 Pub. L. No. 88-352, tit. VII, 78 Stat. 252 (codified as amended at 42 U.S.C. §§ 200e–200e-17(a) (2004)). 

2

 42 U.S.C. § 2000e-4 (2004); U.S. Equal Employment Commission, Order 110.002, 5/97, p. I-1. 3

 U.S. Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, February 1992 

(hereafter cited as USCCR, Asian Americans in the 1990s). 

4

 U.S. Commission on Civil Rights, Equal Employment Rights for Federal Employees, August 1993. This chapter 

does not focus on the federal sector. 
Staff Draft May 2004 40

(ADA) and offered 68 recommendations to improve ADA enforcement.5 In 2000, the 

Commission focused on EEOC’s overall enforcement and offered 112 recommendations.6

 This 

study examines whether EEOC has implemented recommendations made in the earlier reports. 

Mission and Responsibilities 

The EEOC’s mission is to promote equality of opportunity in the workplace and enforce 

federal laws prohibiting employment discrimination. The agency enforces and interprets federal 

employment discrimination laws protecting workers from employment discrimination, and 

adjudicates employment discrimination claims filed against agencies. In regard to the 

administrative charge process, EEOC’s functions are intake, categorization, and investigation. 

EEOC also provides funding and support to state and local Fair Employment Practices Agencies 

(FEPAs) and Tribal Employment Rights Organizations (TEROs).7

 Further, EEOC conducts 

many outreach programs such as a small-business initiative to encourage equal employment 

practices in the private sector.8 Through the Office of the General Counsel (OGC), EEOC files 

lawsuits seeking relief for victims of discrimination and submits amicus curiae briefs to support 

agency positions. EEOC’s mediation-based alternative dispute resolution (ADR) program serves 

to encourage the early resolution of employment disputes, functioning as an alternative to the 

charge investigative process. EEOC enforces the following key civil rights statutes to achieve its 

mission: 

 Title VII of the Civil Rights Act of 1964,9

 as amended, which prohibits employment 

discrimination based on race, color, sex, religion, or national origin. 

 The Age Discrimination in Employment Act (ADEA) of 1967,10 as amended, which 

prohibits employment discrimination against individuals 40 years of age or older. 

 The Equal Pay Act of 1963,11 which prohibits compensation discrimination based on 

gender for substantially similar work under similar conditions. 

 

5

 U.S. Commission on Civil Rights, Helping Employers Comply with the ADA: An Assessment of How the U.S. 

Equal Employment Opportunity Commission Is Enforcing Title I of the Americans with Disabilities Act, September 

1998, pp. iii–iv (hereafter cited as USCCR, Helping Employers Comply with the ADA). 

6

 U.S. Commission on Civil Rights, Overcoming the Past, Focusing on the Future: An Assessment of the U.S. Equal 

Employment Opportunity Commission’s Enforcement Efforts, September 2000, p. viii (hereafter cited as USCCR, 

Overcoming the Past). 

7

 U.S. Equal Employment Opportunity Commission, “Strategic Plan for Fiscal Years 2004–2009,” effective October 

1, 2003, <http://www.eeoc.gov/abouteeoc/plan/strategic_plan_04to09.html> (last accessed Mar. 8, 2004) (hereafter 

cited as EEOC, FY 2004–2009 Strategic Plan); Brett Brenner, attorney advisor, U.S. Equal Employment 

Opportunity Commission, e-mail (EEOC Comments on U.S. Commission on Civil Rights 10-Year Review Chapter 

3: Equal Employment Opportunity Commission), May 17, 2004, pp. 1–2 (hereafter cited as Brenner May 17 e-mail). 

8

 U.S. Equal Employment Opportunity Commission, “EEOC Enforcement Activities,” 2002 <http://www.eeoc.gov/ 

enforce.html> (last accessed Sept. 17, 2003). 

9

 Pub. L. No. 88-352, tit. VII, 78 Stat. 252 (codified as amended at 42 U.S.C. §§ 200e–200e-17(a) (2004)). 

10 Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621–634 (2004)). 

11 Pub. L. No. 88-38, 77 Stat. 56 (codified as amended at 29 U.S.C. §§ 201–206 (2004)). 
Staff Draft May 2004 41

 Title I and Title V of the Americans with Disabilities Act of 1990,12 which prohibit 

employment discrimination on the basis of disability in the private sector and state and 

local government. 

 Sections 501 and 505 of the Rehabilitation Act of 1973,13 as amended, which prohibit 

employment discrimination against federal workers with disabilities. 

 The Civil Rights Act of 1991,14 which provides monetary damages in cases of intentional 

discrimination and clarifies provisions regarding disparate impact actions.15 

Priority of Civil Rights 

EEOC reorganized in 1997 as part of a continuing effort to reinvent and enhance 

effectiveness.16 The reorganization reflected agency reforms implemented in 1995 and 1996 to 

improve management, and operational policies and procedures. At that time, EEOC had 11 

offices at headquarters and 50 field offices nationwide. OGC, the Office of Legal Counsel 

(OLC), and the Office of Field Programs (OFP) were the offices most involved in enforcement 

of ADA, Title VII, ADEA, and the Equal Pay Act. Directors for those components reported to 

and continue to report to the chair today.17 

Today, EEOC has not undergone major organizational restructuring apart from a new 

office that the agency established in Puerto Rico.18 A 2003 National Academy of Public 

Administration (NAPA) study, however, urged major changes.19 NAPA’s three 

recommendations are that EEOC (1) create a national call center and systems for electronic 

charge filing; (2) streamline the field office structure and reduce the number of full-service 

locations; and (3) reorganize the headquarters office.20 In November 2003, EEOC began the 

process of establishing a national contact center to provide general information about EEOC, the 

laws it enforces, and other agencies. The agency envisions a launch of the national contact center 

 

12 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42, 47, 49 U.S.C. (2004)). 

13 Pub. L. No. 93-112, tit. V, 87 Stat. 393 (codified as amended at 29 U.S.C. §§ 793–794 (2004)). 14 Pub. L. No. 102-166, 105 Stat. 1071 (codified as amended in scattered sections of 42 U.S.C. (2004)). 

15 U.S. Equal Employment Opportunity Commission, “U.S. Equal Employment Opportunity Commission: An 

Overview,” November 1998, <http://www.eeoc.gov/facts/overview.html> (last accessed Apr. 26, 2004) (hereafter 

cited as EEOC, “An Overview”). 

16 This was not a major organization and involved only certain headquarters support and management offices. See

Brenner May 17 e-mail, p. 3. 

17 USCCR, Overcoming the Past, p. 59. 

18 Brett Brenner, attorney advisor, U.S. Equal Employment Opportunity Commission, e-mail, Feb. 6, 2004. 

19 The study came about because EEOC asked the National Academy of Public Administration for assistance in 

developing the restructuring plan and the human capital plan that the President’s Management Agenda and related 

Office of Management and Budget and Office of Personnel Management directives required. See National Academy 

of Public Administration, Equal Employment Opportunity Commission: Organizing for the Future, February 2003,

p. 2, <http://www.napawash.org/pubs/eeoc_report_new.htm> (last accessed Jan. 16, 2004) (hereafter cited as 

NAPA, Organizing for the Future). 20 NAPA, Organizing for the Future, p. 3. 
Staff Draft May 2004 42

at the beginning of the third quarter of FY 2005.21 EEOC is reviewing NAPA’s other 

recommendations.22 

 Even though there has been no major restructuring, other key changes occurred at the 

agency. The chair, on assumption of office in August 2001, announced a Five-Point Plan under 

which the agency now operates.23 EEOC also adopted a new strategic plan for FY 2004–2009, 

operational in October 1, 2003.24 Too, the agency launched a comprehensive effort to combat 

backlash discrimination after the September 11, 2001, terrorist attacks. EEOC, along with the 

Departments of Justice and Labor, issued a public statement focused on preventing and 

redressing harassment incidents and workplace discrimination and violence, including any acts 

directed toward individuals who are, or are perceived to be, Arab, Muslim, Middle Eastern, 

South Asian, or Sikh. EEOC also released a fact sheet to the public on discrimination based on 

religion, ethnicity, or country of origin and created a special section on the agency Web site 

devoted to post-terrorism-related employment problems. The agency also set up a new code 

(named post-9-11 related) in its database to track charges alleging employment discrimination 

related to the events of September 11, 2001. Within a year of the attacks, 654 such charges were 

filed under Title VII. Of the 449 post-9-11 related charges that were closed, 95 had legitimate 

claims that were successfully resolved.25 

EEOC’s organizational setup is presented in figure 3.1. 

 

21 Brenner May 17 e-mail, p. 3; “EEOC Approves Initial Restructure Plan Establishing Call-In Center for Two-Year 

Pilot,” Daily Labor Report, Nov. 7, 2003, p. A-2. 

22 “With EEOC Finally at Full Strength, Mediation, Call Center Are Focus for 2004,” Daily Labor Report, Jan. 12, 

2004, p. C-1. 

23 U.S. Equal Employment Opportunity Commission’s Response to the U.S. Commission on Civil Rights 

Interrogatory for Volume IV of the Ten-Year Review of Civil Rights Enforcement, Nov. 25, 2003, p. 1 (hereafter 

cited as EEOC Interrogatory). The Five-Point Plan is discussed in greater detail in the Planning section of this 

chapter. 

24 The strategic plan is discussed in greater detail later in the Planning section of this chapter. 25 EEOC Interrogatory, p. 5. 
Staff Draft May 2004 43

FIGURE 3.1 

EEOC Organizational Structure, 2004

Source: U.S. Equal Employment Opportunity Commission, Organizational Chart, May 3, 2001, <http://www.eeoc.gov/abouteeoc/plan/2002 

budget/appendix_b-4.html> (last accessed Feb. 5, 2004). 

Among this section’s key points: 

 EEOC’s organizational structure has remained basically the same since the Commission’s 

2000 review. The NAPA report recommended major changes to the agency’s 

organizational structure. 

 EEOC is beginning to implement one key change, setting up a national contact center to 

provide general information on EEOC, the laws it enforces, and other agencies. It is 

considering other NAPA recommendations. The agency envisions a launch of the 

national contact center in the beginning of the third quarter of FY 2005. 

 EEOC’s chair introduced the Five-Point Plan, and the agency developed a strategic plan 

for FY 2004–2009. 

Resources—Funding and Staffing 

EEOC, the Commission stated in 1998, struggled to accomplish its mission because it 

had insufficient funding and staff.26 While it acknowledged that EEOC developed and 

implemented new procedures and policies to improve its enforcement activities within the 

 

26 USCCR, Helping Employers Comply with the ADA, p. 247. 

Office of Research, 

Information and 

Planning

Office of Chief 

Financial Officer and 

Administrative 

Services

Office of Information 

Resource 

Management

Commissioner Commissioner

General Counsel

Commissioner Vice Chairman Chairwoman

Office of 

Equal Opportunity

Office of 

Inspector General

Office of 

General Counsel

Field Offices

District, Area, 

and Local

Field Offices 

Legal Division

Office of 

Human Resources

Executive 

Secretariat

Office of 

Legal Counsel

Office of 

Field Programs

Office of 

Communications 

and Legislative

Office of 

Federal Operations
Staff Draft May 2004 44

constraints of limited resources, the Commission nevertheless recommended in 2000 that EEOC 

conduct two internal evaluations. The first was an assessment of EEOC spending priorities, 

including identifying major program areas to which funding could be focused or reallocated. The 

Commission urged that this study include accountability factors for program areas to ensure 

appropriate use of resources. The Commission recommended increased or reallocated funding 

for mediation, technical assistance, state and local fair employment agencies, staff training, 

trends research and analysis, and headquarters oversight of field offices. The Commission said 

EEOC should evaluate its overall budgetary and staffing needs, and strategic and national 

enforcement plans, as well as develop a plan on how to use additional funding, if received.27

In the past five years, EEOC did not always receive the funds it requested. For example, 

EEOC requested budgets for FY 2000, 2001, and 2003 are $312 million, $322 million, and 

$320.4 million, respectively. The corresponding appropriated budgets are $280.9 million, $304 

million, and $310.2 million, respectively.28 EEOC’s congressionally appropriated budget for FY 

1998–2002 shows yearly increase (see figure 3.2). 

FIGURE 3.2 

EEOC Budget, 1998–2002 

 

 Source: U.S. Commission on Civil Rights, Funding Federal Civil Rights Enforcement: 2004, June 2003, p. 12. 

The agency claims it continually seeks ways to maximize existing resources. In this 

effort, it provides funds annually for: 

 The ADR program. 

 

27 USCCR, Overcoming the Past, pp. 263–64. 

28 U.S. Equal Employment Opportunity Commission budget requests for FY 2000 (p. 85), FY 2001 (p. 19), and FY 

2003 (p. 15). 

$279

$304 $310.2

$280.9

$242

$200.0

$225.0

$250.0

$275.0

$300.0

$325.0

1998 1999 2000 2001 2002

Fiscal year

Millions of dollars
Staff Draft May 2004 45

 Enforcement efforts on charges filed by the public, as well as systemic, commissioner, 

and directed charges, including on-site investigations, as appropriate. 

 Research and analysis of data on ongoing investigations, from EEO-1 forms and other 

sources. 

 Programmatic and operational staff training. 

 Outreach and technical assistance to the public, employers, and other stakeholder 

organizations. 

 Oversight of field offices to ensure quality technical assistance and performance. 

 FEPA and TERO partners.29 

EEOC says it already conducts a full range of analyses and evaluations during annual 

budget preparation and throughout the fiscal year. Therefore, EEOC has no additional plans to 

assess its budget nor does it regard doing so productive.30 

Despite the 1997 reorganization, the Commission said in 2000 that numerous obstacles 

remained that prevented EEOC from accomplishing its mission, including a high rate of 

management turnover. The Commission recommended that EEOC fill high-level managerial 

positions, particularly district director and regional attorney positions, to ensure that management 

in field offices remained stable. The agency also needed to undertake long-term strategic 

planning to foster organizational stability through changes in administration.31

EEOC claims that the few leadership changes that occurred since 2000 involved smooth 

transition periods.32 It states that headquarters and field vacancies in key positions are usually 

filled quickly. When this is not feasible, the agency details individuals, either from the 

management ranks within the affected office or other EEOC offices, to those positions. Field 

staff also have been detailed to critical vacancies at headquarters and vice versa.33 To address 

staffing shortages in the field offices, Chair Dominguez took drastic measures and “reassigned 

[in December 2003] five ‘high producing’ district directors to assume additional 

responsibilities—in effect, running two offices on a temporary basis. Chair Dominguez said that 

she made the changes for sound budget and management planning reasons, adding “‘an 

extremely tight budget situation prevented [EEOC] from filling vacancies, some of which had 

existed for more than three years.’”34 

 

29 EEOC Interrogatory, p. 6. 

30 Ibid., p. 7; Brenner May 17 e-mail, p. 5. 

31 USCCR, Overcoming the Past, pp. 269–70. 32 EEOC claims the smooth transitions resulted in record levels of performance. For example, at the end of FY 2003, 

70.8 percent of EEOC’s charge inventory was under 180 days old; the total number of pending charges was under 

30,000; nearly 8,000 charges were resolved through mediation; and, in the administrative process alone, almost $240 

million in monetary relief was obtained for individuals who had experienced discrimination. See EEOC 

Interrogatory, p. 2. 

33 EEOC Interrogatory, p. 2. 

34 “EEOC to Focus on Call Center, More Mediation in 2004,” Daily Labor Report, Jan. 12, 2004, p. C-1. 
Staff Draft May 2004 46

In addition, during its 2004 fact-finding, the Commission discovers that with regard to 

presidential appointees, it was only at the beginning of FY 2004 that EEOC had a full 

complement of commissioners for the first time in seven years. The Senate only confirmed the 

general counsel in July 2003. The general counsel’s position had lain vacant since the Bush 

administration took office and was discharged for several years on an acting basis.35 EEOC is 

now operating with no presidential-appointee vacancies. 

The Commission’s analysis of staffing between FY 1998 and 2002 shows that EEOC did 

not receive the staffing it requested to discharge its responsibilities (see table 3.2). The 

percentage difference between actual and requested full-time equivalent staff (FTEs) was 

greatest in FY 2001, at 13.0 percent, followed by 2002, at 9.8 percent. As to actual FTEs, with 

the exception of a 10.0 percent increase in FY 2000 (2,593 to 2,852), yearly increase was small. 

Finally, many EEOC employees will be eligible for retirement in the next several years.36 

TABLE 3.2 

Requested and Actual Full-Time-Equivalent Staff at EEOC, 1998–2002

Fiscal 

 year 

Requested 

FTEs

Actual 

FTEs

Percent difference 

between requested

and actual FTEs*

1998 2,680 2,544 -5.3%

1999 2,748 2,593 -6.0%

2000 2,946 2,852 -3.3%

2001 3,055 2,704 -13.0%

2002 3,055 2,783 -9.8%

*Derived from the original data. 

Source: U.S. Commission on Civil Rights, Funding Federal Civil Rights Enforcement: 2004, June 2003, p. 13. 

Among this section’s key points are: 

 Over the past five years, EEOC did not always receive requested funds. 

 Between FY 1998 and 2002, EEOC did not receive the staffing it requested to 

accomplish its mission. 

 All five commissioner positions are filled for the first time in seven years; the Senate 

only confirmed the general counsel in July 2003. 

 EEOC details employees to critical headquarters and field vacancies that cannot be 

quickly filled. 

 

35 Ibid. One long-time commissioner’s term is due to expire in July. See ibid. 36 EEOC, FY 2004–2009 Strategic Plan. 
Staff Draft May 2004 47

Planning 

The Commission’s 2000 report stated that EEOC developed the Comprehensive 

Enforcement Program (CEP)37 to link the strategies of the National Enforcement Plan38 and 

Local Enforcement Plans39 with the Priority Charge Handling Procedures (PCHP),40 the agency’s 

primary workload management tool.41 The CEP was designed to emphasize collaboration among 

EEOC outreach, investigatory, and legal staff to improve public service; increase outreach, 

education, and technical assistance to employers; resolve charges quickly and more effectively; 

and enforce the law when employers fail to take corrective action voluntarily.42 However, the 

Commission said in 2000 that the CEP did not discuss in any detail how its key elements could be 

instituted. The Commission thus recommended that OFP closely monitor CEP implementation and 

that field office management be given the opportunity to meet collaboratively with the chair and 

the OFP director to discuss methods to meet CEP requirements, such as attorney-investigator 

interaction, enhancement of the intake function, and performance measurement.43

EEOC indicates that the key elements of the CEP have been incorporated as practical and 

ongoing steps into enforcement and litigation procedures. They are clarified during annual 

conferences of district directors, regional attorneys, and program analysts; regional cluster 

meetings of district directors; task forces; special workgroups; and, within field offices, through 

regularly scheduled meetings between enforcement and litigation offices. In addition, OFP 

monitors CEP implementation through biannual technical assistance visits to district offices and 

through evaluating the performance of district directors.44 

 

37 On assumption of office in 1998, the then-chair determined that a strategic comprehensive approach was needed 

to help EEOC reach the next plateau in employment discrimination enforcement. The challenge was to implement a 

process where nonmeritorious charges could be separated from the rest of the charges and dealt with swiftly. 

Although the policy pieces were in place, an operational plan that brought the staff together without adding layers of 

work had to be developed. Thus, the Comprehensive Enforcement Program (CEP) came into existence. The major 

focus of the CEP is to strengthen the relationships between the legal and administrative enforcement functions. See

USCCR, Overcoming the Past, p. 76. The Comprehensive Enforcement Program was previously known as the 

Comprehensive Enforcement Program. See Brenner May 17 e-mail, p. 6. 

38 The National Enforcement Plan identifies priority issues and sets forth a plan for administrative enforcement and 

litigation of Title VII, ADEA, ADA, and the Equal Pay Act. It calls for EEOC to eliminate discrimination through 

education, outreach, and technical assistance at the national and local levels, the voluntary resolution of disputes, 

and where the latter fails, the use of strong and fair enforcement. See USCCR, Overcoming the Past, p. 75. 

39 The National Enforcement Plan requires that each district director and regional attorney develop a Local 

Enforcement Plan and submit it to the EEOC commissioners, general counsel, and director of OFP for review. 

Although Local Enforcement Plans are linked to National Enforcement Plans, each district identifies its own 

enforcement priorities and target population. Outreach, education, technical assistance and training, enforcement 

activities, and litigation are also included in Local Enforcement Plans. See USCCR, Overcoming the Past, pp. 75–

76. 

40 The Priority Charge Handling Procedures were initiated in 1995. Details are provided in later sections of this 

chapter. 

41 USCCR, Overcoming the Past, p. 272. 42 EEOC, “An Overview.” 

43 USCCR, Overcoming the Past, p. 272. 44 EEOC Interrogatory, p. 31. 
Staff Draft May 2004 48

More importantly, the Five-Point Plan is now the overarching framework for 

accomplishing the agency’s mission and undergirds the strategic plan’s strategic objectives. 

Adopted in FY 2002, this broad plan promotes strategic alliances within EEOC and with outside 

organizations.45 It builds on what EEOC has done and provides the framework for the agency’s 

mission.46 The five points are as follows: 

 Proactive prevention focuses on education and outreach to employers and employees to 

help them identify and solve problems before they escalate. 

 Proficient resolution seeks to provide fair, prompt, and cost-effective enforcement and 

legal services. 

 Promotion and expansion of mediation or alternative dispute resolution addresses 

ongoing enhancement of a comprehensive agencywide alternative dispute resolution 

(ADR) program, as well as work to increase the number of private employers who agree 

to mediate. 

 Strategic enforcement and litigation seeks to strategically use EEOC resources and to 

better integrate policy, investigative, litigation, and outreach functions. 

 EEOC as a model workplace implements the President’s Management Agenda so that 

employees may accomplish the agency’s goals effectively and efficiently in an 

environment conducive to good employment practices.47 

The EEOC chair appointed a workgroup in FY 2002 to implement one of its points, 

strategic enforcement and litigation. The workgroup is charged to develop a strategic 

enforcement and litigation plan to better integrate policy development with investigative and 

litigation functions, and to help EEOC make strategic decisions about emerging workplace 

trends and issues that merit attention. The workgroup’s work is ongoing and members are now 

reviewing appropriate materials as they develop a plan.48 

The FY 2004–2009 strategic plan contains three objectives to advance the agency’s 

mission: 

 Justice and opportunity focuses EEOC’s resources on serving the public through seeking 

justice for individuals who experience employment discrimination, and removing 

discriminatory barriers. This objective incorporates and implements three points of the 

Five-Point Plan: proficient resolution, promoting and expanding mediation/ADR, and 

strategic enforcement and litigation. 

 Inclusive workplace strengthens America’s workplace through preventing discrimination 

and promoting employment policies and practices that foster an inclusive work culture. 

This objective incorporates and implements one point of the Five-Point Plan, proactive 

prevention. 

 

45 Ibid., p. 4. 

46 U.S. Equal Employment Commission, About EEOC, “ Strategic Plan for Fiscal Years 2004–2009,” 

<http://www.eeoc.gov> (last accessed Jan. 20, 2004). 

47 EEOC Interrogatory, p. 1. 

48 Ibid., p. 12. 
Staff Draft May 2004 49

 Organizational excellence directs EEOC to establish an organizational infrastructure that 

will set and implement the highest quality standards for equal opportunity, customer 

service, internal efficiency, and fiscal responsibility. This objective seeks to implement 

the fifth point, making EEOC a model workplace.49 

In addition to these objectives, the strategic plan also incorporates initiatives such as the 

President’s Management Agenda and the President’s New Freedom Initiative.50 Several 

outcomes with deadlines, as well as means/strategies are associated with each strategic objective. 

One example of a process outcome for the strategic objective “justice and opportunity” is “by 

2009, ensure that at least 70 percent of private sector charges will be resolved within 180 

days.”51 One example of a corresponding strategy is “to collaborate with stakeholders, academia, 

and the public to ensure open communication and feedback; to identify trends and strategies for 

improving private sector and federal sector processes; and to have a meaningful impact on 

addressing discriminatory employment policies and procedures.”52 The Annual Performance 

Plans (APPs) contain performance indicators for measuring progress in meeting targets set in the 

strategic plan.53 

For the above process outcome, “by 2009, ensure that at least 70 percent of private sector 

charges will be resolved within 180 days,” the targets for FY 2001, 2002, and 2003 were 60 

percent while the results were higher, 64 percent, 65.6 percent, and 68.9 percent, respectively.54

The strategic plan indicates that the agency has scheduled five program evaluations, with three 

relating to performance measures in the strategic plan, namely, (1) private sector mediation 

programs, (2) administrative processing of private sector charges, and (3) federal sector 

mediation programs. The remaining two scheduled evaluations are to determine (4) the effect of 

EEOC’s high-impact litigation and (5) the effect of EEOC’s federal sector evaluation and 

assistance. EEOC is establishing procedures for conducting program evaluations and preparing 

for the assessment of private sector mediation programs during FY 2005.55

 

49 Ibid., pp. 1–2. 

50 President Bush announced the New Freedom Initiative in February 2001 to promote the full integration of people 

with disabilities into all aspects of American life. The goals of this comprehensive plan include expanding 

educational and employment opportunities; increasing access to assistive technologies and public accommodations; 

and providing accessible transportation and housing options for individuals with disabilities. The initiative builds on 

the progress that ADA made in protecting the civil rights of approximately 54 million Americans with disabilities. 

EEOC has taken a lead role in implementing the employment goals of the initiative. See U.S. Equal Employment 

Opportunity Commission, “New Freedom Initiative,” Oct. 8, 2003, <http://www.eeoc.gov/initiatives/nfi/index.html> 

(last accessed Jan. 28, 2004). 

51 EEOC, FY 2004–2009 Strategic Plan. As a result of the amendment to the strategic plan, which was included in 

the FY 2005 performance budget, the measure went from 70 to 75 percent. See Brenner May 17 e-mail, p. 4. 

52 EEOC, FY 2004–2009 Strategic Plan. 

53 Ibid. 

54 U.S. Equal Employment Opportunity Commission, “FY 2005 Performance Budget,” February 2004, 

<http://eeoc.gov/abouteeoc/plan/2005budget.html> (last accessed Mar. 8, 2004). 

55 EEOC, FY 2004–2009 Strategic Plan; Brett Brenner, attorney advisor, U.S. Equal Employment Opportunity 

Commission, e-mail, Mar. 10, 2004; Brenner May 17 e-mail, p. 4. 
Staff Draft May 2004 50

Among this section’s key points are: 

 The EEOC chair appointed a workgroup in FY 2002 to develop a strategic enforcement 

and litigation plan that would better integrate policy development with investigative and 

litigation functions. 

 The workgroup’s work is ongoing and members are now reviewing appropriate materials 

as they develop a strategic enforcement and litigation plan. 

 The FY 2004–2009 strategic plan incorporates and implements the Five-Point Plan. 

Policy Guidance 

The Commission’s present review finds that EEOC develops and implements two kinds 

of policies: operational policies that govern the agency’s administrative objectives, and legal 

policies that include regulatory and subregulatory guidance. Subregulatory guidance is policy 

guidance that is not issued for notice and comment and that does not appear in the Federal Code 

of Regulations.

56 The Office of Legal Counsel (OLC) develops legal policy, drawing on diverse 

sources, including recommendations from commissioners and staff, employers, employees and 

their representative organizations, and civil rights and labor organizations; case law and analysis 

of problems that would benefit from policy development; and input from other government 

agencies. EEOC is not required to follow public notice and comment procedures before clearing 

subregulatory guidance, although it obtains significant public involvement, such as discussions 

with stakeholders and letters from the public. All subregulatory guidance is reviewed and 

circulated internally according to strictly defined procedures before EEOC approval.57 The 

Executive Secretariat circulates draft subregulatory guidance to appropriate offices for comment. 

It is then forwarded to OLC for further review, and then to the commissioners for a vote.58 The 

EEOC commissioners are the final authority for approving all the agency’s legal policy.59 

In 2000, the Commission noted that EEOC had named retaliation as a priority and 

updated its original guidance in the compliance manual. The Commission encouraged EEOC to 

continue to update policy guidance on retaliation, including examples of types of retaliation that 

employers practiced. Such guidance should rely on recent court cases and instruct investigators 

on how to determine whether retaliation occurred. The Commission also noted that since 1998, 

EEOC issued only two sections of its new compliance manual and said that the agency should 

complete and issue a full new manual.60 

Today, EEOC states that it has not issued an updated compliance manual. Since 1998, it 

has been updating volume 2 of the compliance manual; new and updated sections become a part 

of the new compliance manual. The agency has published on its Web site a detailed compliance 

 

56 Brett Brenner, attorney advisor, U.S. Equal Employment Opportunity Commission, e-mail, Mar. 8, 2004. 

57 EEOC Interrogatory, pp. 3–4. 

58 Brett Brenner, attorney advisor, U.S. Equal Employment Opportunity Commission, telephone interview, Mar. 26, 

2004. 

59 EEOC Interrogatory, p. 4. 

60 USCCR, Overcoming the Past, p. 272. 
Staff Draft May 2004 51

manual section on retaliation that reflects its present enforcement position. This section provides 

guidance on investigating retaliation cases and gives numerous examples of actions that 

constitute unlawful retaliation under the statutes EEOC enforces. EEOC staff are also drafting 

sections addressing religious, racial and color, and age discrimination. Compliance manual 

sections are available to staff on the agency’s intranet. EEOC-approved sections are posted to the 

agency’s public Web site.61

In 2000, EEOC did not follow established intervals for reviewing, developing, and 

issuing subregulatory policy guidance. The Commission recommended that EEOC develop a 

timetable for reviewing existing guidance to determine relevance and usefulness.62 

EEOC still does not have a formal timetable to review existing guidance to determine 

relevance and usefulness. The agency asserts that all its attorneys routinely keep abreast of 

developing case law, statutory amendments, and pertinent legal treatises and law review notes 

and articles. These attorneys regularly interact with employees, employers, and organizations 

representing the myriad parties having an interest in equal employment opportunity. EEOC 

contends that all these individuals and groups can readily convey suggestions for policy revisions 

to OLC or other EEOC offices.63 

The Commission stated in 1998 that ADA’s broad framework for ensuring equal 

employment opportunity and nondiscrimination for employed people with disabilities invariably 

left too much discretion to apply different definitions to key ADA-related terms. The 

Commission recommended that EEOC issue policy guidance to clarify its position on such key 

terms, including “health insurance and disability-based insurance,” “major life activity,” 

“qualified individual,” “reasonable accommodation and undue hardship,” and “job-related and 

business necessity.”64 

EEOC has issued guidance on such terms and other ADA-related guidance and offers 14 

examples of such documents in its interrogatory response to the Commission.65 All but three, 

however, were issued between FY 1993 and 2000. A more recent EEOC effort is formally 

commenting on other federal agencies’ proposed regulations addressing related definitional 

issues. For example, EEOC commented on the Office of Personnel Management’s “Interim Rule 

With Request for Comments: Federal Long Term Care Insurance Regulation.”66 

 

61 EEOC Interrogatory, pp. 13–17; For a list of the revised Compliance Manual Sections, see EEOC Interrogatory, p. 

13. 

62 USCCR, Overcoming the Past, pp. 270–71. 

63 EEOC Interrogatory, p. 14. 

64 USCCR, Overcoming the Past, pp. 249–60. 65 See EEOC Interrogatory, pp. 15–17. EEOC rescinded several sentences of the Interpretive Guidance on Title I of 

the Americans with Disabilities Act, found in the Appendix to 29 C.F.R § 1630.2(h) and (j), that addressed 

mitigating measures used by persons with impairments. The Supreme Court held that the determination of whether 

an individual has an impairment that substantially limits a major life activity under the ADA must be made by 

considering any mitigating measures that the individual uses to eliminate or reduce the effects of an impairment. See

Interpretive Guidance on Title I of the Americans with Disabilities Act, 65 Fed. Reg. 36,327 (2000) (to be codified 

as 29 C.F.R. pt. 1630). 66 68 Fed. Reg. 5,530 (Feb. 4, 2003); EEOC Interrogatory, p. 14. 
Staff Draft May 2004 52

EEOC now says that since 2000, it has issued significant informal guidance on the job 

application process, telework as a reasonable accommodation, and the ADA Primer for Small 

Businesses, for example, employing a user-friendly question-and-answer format. The agency 

considers its approach most appropriate to meet the public’s informational needs about ADA 

rights and responsibilities. While this works well for the general public, the legal and human 

resource communities and other federal agencies require detailed, formal guidance to do their 

work, not informal, simplified guidance.67 

EEOC actively litigated race cases, but the Commission said in 2000 that it provided little 

guidance on race discrimination under Title VII. None of EEOC’s policies directly referred to 

and offered guidance on race discrimination, specifically racial harassment. The Commission 

stressed that racial harassment was one of the most rooted concepts in discrimination law and 

recommended that EEOC issue guidance on how to prevent racial harassment. The guidance 

should include recent court cases’ rationales for arriving at a determination of racial 

discrimination and provide clear examples of racially discriminatory behavior.68 

EEOC indicates that its draft compliance manual section on race and color discrimination 

in employment will include information about racial harassment, including prohibited practices 

and useful examples with citations to court cases. This section will be released before September 

30, 2004.69

In its assessment of EEOC’s ADA enforcement, the Commission’s 1998 report found 

that many of the activities and issues EEOC addressed required the advice of subject-matter 

experts in the social sciences or medicine. EEOC’s Research and Analytic Services (RAS) unit 

in OLC had on staff subject-matter experts, including social scientists, economists, and 

psychologists. Unfortunately, OLC and its ADA Policy Division had little contact with RAS. 

Therefore, the Commission recommended that OGC staff make use of in-house subject-matter 

experts during policy guidance development and consider hiring an in-house medical expert to 

help staff during ADA investigations.70 

EEOC states that OLC confers with RAS on technically complex subjects, such as 

economic impact analyses, statistical/systemic analyses, industrial and organizational 

psychology, and social sciences generally. For example, OLC staff consulted RAS when drafting 

the compliance manual section on discrimination in compensation. OLC also has sought RAS 

assistance with investigations and has encouraged field offices to do the same.71 

Among this section’s key points are: 

 

67 Brenner May 17 e-mail, p. 7. 

68 USCCR, Overcoming the Past, pp. 87, 271. 69 EEOC Interrogatory, pp. 17–18. 

70 USCCR, Helping Employers Comply with the ADA, p. 251. 

71 EEOC Interrogatory, pp. 18–19. A recent OLC compliance manual section to field staff states: “For assistance and 

technical support in conducting relevant analysis and estimating monetary relief in systemic cases, contact your 

liaison in the Office of General Counsel, Litigation Management Services at (202) 663-4719 and/or Research and 

Analytic Services at (202) 663-4749. You may also contact the Office of Research, Information and Planning, 

Research and Technical Information Branch, at (202) 663-4959 for assistance and technical support.” Ibid., p. 19. 
Staff Draft May 2004 53

 Unlike regulatory guidance, EEOC is not required to follow public notice and comment 

procedures when clearing subregulatory guidance.72 However, there is public 

involvement, such as discussions with stakeholders. 

 EEOC issued definitions for several key ADA-related terms, but almost all guidance was 

issued before 2000. In a recent communication with the Commission, EEOC says that it 

has issued informal guidance on various topics using a user-friendly question-and-answer 

format. This does not negate the need to develop detailed formal guidance to help 

professionals who work in the ADA area. 

 EEOC has not issued an updated compliance manual. 

 EEOC does not follow a formal timetable for reviewing existing guidance to determine 

currency. The agency keeps abreast of developing case law, statutory amendments, and 

pertinent legal treatises and law review notes and articles in the course of ongoing work. 

 EEOC makes appropriate use of RAS’ subject-matter specialists. 

Technical Assistance 

Technical Assistance Program Seminars (TAPS) were tailored to areas of public interest 

and featured such popular topics as sexual harassment, ADA, ADR, and government sessions on 

employment law. The Commission recommended in 2000 that EEOC continue to market and 

develop TAPS to meet audience needs and interest; however, TAPS should be comprehensive in 

its coverage of employment discrimination laws and include issues identified in the National 

Enforcement Plan and the Local Enforcement Plan.73

Each district office now annually submits a proposed location and spending plan for its 

fee-based TAPS.74 The Revolving Fund (RF) Division reviews and approves the proposed plans 

to ensure that locations are geographically dispersed and are in areas that can attract enough 

attendees to cover seminar costs. Each district office also submits an annual outreach plan and 

budget request, which describes planned activities for the coming year. The national outreach 

coordinator reviews these plans to determine if they (1) ensure outreach to underserved groups in 

different geographic communities; employer groups, including small businesses; underserved 

national origin groups; the legal community, including the plaintiff’s bar; and the federal sector; 

and (2) include efforts to promote ADR in the employer community; partnership with industry 

groups and employer associations; and partnership with state and local agencies and federal 

agencies such as DOJ.75 

EEOC headquarters, the Commission said in 2000, expended Revolving Fund monies as 

Congress intended.76 When Congress established the RF, it stipulated that EEOC should charge 

 

72 5 U.S.C. § 553 (2004). 

73 USCCR, Overcoming the Past, p. 292. 

74 The RF division coordinates the marketing of TAPS. District offices conduct supplemental marketing of their 

respective TAPS. Brett Brenner, attorney advisor, U.S. Equal Employment Opportunity Commission, telephone 

interview, Mar. 26, 2004; Brenner May 17 e-mail, p. 8. 

75 EEOC Interrogatory, pp. 19–20. 

76 USCCR, Overcoming the Past, p. 291. 
Staff Draft May 2004 54

fees to offset the costs of education, technical assistance, and training provided with the fund. It 

further required that the fees be uniformly imposed upon the persons and entities receiving it; 

and that they be reasonably related to and not in excess of the cost of providing it.77 Thus, 

headquarters set fees for TAPS; and reviewed and approved proposals for customer-specific 

training so that there was cost uniformity nationwide. The agency also hired a consultant to 

target technical assistance, consulted stakeholders, and required district offices to consult their 

stakeholders as well. The Commission advised EEOC to make certain that procedures for 

managing the fund enhanced the agency’s technical assistance and outreach programs.78 

The RF division and the national outreach coordinator work closely together to provide 

direction, consistency, and coordination in tracking and managing both no-cost education and 

outreach and fee-based RF activities, and to ensure that the two programs complement each 

other. There is no evidence that the RF division established procedures for fund management and 

monitoring management to ensure compliance with congressional intent.79 EEOC indicates that 

the RF division is able to retrieve information on cost expenditures and revenues from EEOC’s 

financial system. The agency has asked the RF division to prepare and implement a five-year 

business plan outlining RF’s goals, objectives, product lines, and marketing and fee structure.80 

EEOC headquarters systematically evaluated TAPS and customer-specific training in 

2000. Evaluations assessed how well the content met employers’ needs, but did not focus on 

whether employers changed their behavior or company policies after the training. Therefore, the 

Commission recommended that EEOC strengthen the evaluation program to include a 

determination of whether TAPS participants were less likely to have employee complaints filed 

against them, more likely to change employment policies, and reported increased diversity on 

EEO-1 forms.81

EEOC attendees at TAPS complete a nonmandatory evaluation form that assesses the 

overall seminar, individual sessions, instructors, handouts, and audiovisuals. Trainers ask 

attendees to identify the sessions that were most useful, state whether the training will enable 

them to perform their jobs more effectively, and indicate whether the training will bring about 

changes in the organization’s practices/policies, or enable the organization to prevent or resolve 

discrimination claims more effectively. However, such evaluation does not measure actual 

behavioral change; that is, if fewer TAPS participants have employee complaints filed against 

 

77 42 U.S.C. § 2000e-4(k) (2004); USCCR, Overcoming the Past, p. 226. 78 USCCR, Overcoming the Past, p. 291. 

79 In a recent communication, EEOC states that “since 2002, the Revolving Fund has employed a business manager 

who is responsible for ensuring appropriate fiscal management of Revolving Fund monies, following sound 

accounting practice and congressional intent.” See Brenner May 17, p. 8. EEOC did not provide any detail on how 

the business manager accomplishes this other than “following sound accounting practice and congressional intent.” 

EEOC also did not discuss how management is monitored to ensure compliance with congressional intent. See ibid. 

80 EEOC Interrogatory, p. 21. In a recent communication, EEOC claims that the Commission, statement (reproduced 

here), “ The agency has asked the RF division to prepare and implement a five-year business plan outlining RF’s 

goals, objectives, product lines, and marketing and fee structure,” is incorrect. This statement is taken from p. 21 of 

the EEOC interrogatory, which was returned to the Commission toward the end of November 2004. EEOC goes on 

to say that “ the business plan is complete and was implemented in FY 2003.” See Brenner May 17 e-mail, p. 8. 81 USCCR, Overcoming the Past, p. 292. 
Staff Draft May 2004 55

them and whether more of them change employment policies; and does not assess TAPS 

attendees’ EEO-1 forms to determine if diversity improved.82 

Among this section’s key points are: 

 EEOC attendees at TAPS complete a nonmandatory evaluation form that assesses the 

seminar. However, the evaluation does not measure actual behavioral change; that is, if 

fewer TAPS participants have employee complaints filed against them and whether more 

of them change employment policies 

 The RF division reviews and approves each district office’s annual proposed location and 

spending plan for its fee-based training, which includes TAPS and customer-specific 

training courses. The national outreach coordinator reviews the district office’s annual 

outreach plan and budget request. 

Education and Outreach 

EEOC’s efforts to reach underserved groups and areas began in the mid-1990s. 

According to the Commission in 2000, district offices employed different means to reach 

Hispanic, Asian, and Native American communities. Outreach emphasized contacting ethnic 

media, hiring bilingual investigators and program analysts, and working with community groups. 

The Commission encouraged innovative approaches and urged district offices to avoid limiting 

outreach to everyday routine activities. District offices, it said, should develop and implement a 

comprehensive outreach program to design and execute outreach projects that were not part of 

daily enforcement activities.83 

Among EEOC’s current approaches to reach underserved minority communities are 

community forums and town hall meetings. Just before a meeting, EEOC arranges local press 

announcements of the event and press interviews with staff. Trainers offer day sessions aimed at 

employers and evening sessions geared toward employees and the public. EEOC also utilizes 

“expanded presence activities,” which offer off-site individual counseling and charge-taking in 

partnership with local community groups, such as the Urban League and the Spanish American 

Committee, and service organizations, such as the State Workforce Centers. These organizations 

provide space and office equipment. As before, staff advertise their presence through the media 

and local community organizations. In FY 2003, the Office of Communications and Legislative 

Affairs and OFP devised another approach to build and strengthen relationships with ethnic and 

foreign-language media representing traditionally underserved communities. For example, the 

New York District Office sponsored a forum for New York’s independent press, drawing 

journalists representing such diverse publications and media outlets as the Caribbean Voice, 

Asian World Journal, Chinese Overseas Television Network, Muslims Weekly, Dominican 

Times, La Hoy, India Tribune, China Press, and Korea Central Journal. At this forum, EEOC 

 

82 EEOC Interrogatory, p. 22. 

83 USCCR, Overcoming the Past, pp. 293, 296. The “expanded presence” policy has been in place for at least 20 

ears. See Brenner May 17 e-mail, p, 8. 
Staff Draft May 2004 56

explained its work and mission and sought input on how it could better serve ethnic communities 

in New York City.84 

In FY 2002, field and headquarters offices offered 4,136 educational, training, and 

outreach events that reached 360,836 persons; 1,532 oral presentations; 654 training sessions, 

including RF events; 251 stakeholder input meetings; and 250 expanded presence activities 

providing individual counseling and assistance to underserved constituents. Furthermore, field 

and headquarters offices distributed material on EEO laws and represented EEOC at 650 other 

public events, reaching 122,744 people. Field and headquarters offices also made 508 media 

presentations (including radio and TV interviews, talk shows, and press conferences) that 

provided substantive EEO information to thousands of stakeholders as well as individuals in 

other protected classes.85 

The Commission’s 1992 study on civil rights issues facing Asian Americans revealed that 

many, particularly the immigrant generation, faced unlawful discrimination in the workplace due 

to limited English proficiency, accent, or desire to speak native languages on the job. Thus, the 

Commission recommended that federal agencies increase outreach efforts to educate employers 

about the rights of language-minority workers.86 Further, the Commission reported in 2000 that 

while EEOC has prepared fact sheets, brochures, and booklets, only the fact sheets were 

available in non-English languages. A general brochure about filing a charge of job 

discrimination was available in Braille, large print, audiotape, and electronic file. As such, the 

Commission said EEOC should produce fact sheets, brochures, and booklets in languages other 

than English and in Braille, large print, audio, and electronic file formats.87

OLC engages in extensive outreach with respect to the agency’s efforts to educate not 

just employers and language minorities, but also people of color and those with disabilities on 

their rights. Its attorneys regularly give ADA training throughout the country at conferences and 

presentations for employees, employers, human resource professionals, government 

representatives, disability advocates, individuals with disabilities, chambers of commerce, and 

ethnic advocacy organizations. Since FY 2002, EEOC has presented approximately 50 free ADA 

workshops across the country targeted to small-business audiences to promote the hiring of 

people with disabilities. The agency has also issued pamphlets and other publications. It offers 

sign language interpreters, a TTY telephone system for people with hearing impairments, and 

documents in electronic format, Braille, large print, and audiotape.88 

 

84 EEOC Interrogatory, pp. 26–27. 

85 Ibid., p. 23. EEOC says that overview of EEO laws and procedures composes 50 percent of all events. Charge 

processing procedures is second, at 20 percent of all events. EEOC’s mediation program and Title VII are the third 

and fourth most frequent topics, respectively. Other sought-after topics were national origin discrimination, 

including English-only rules; ADA, including reasonable accommodation; harassment (both sexual and nonsexual); 

discrimination based on religions followed by gender, race and age discrimination, retaliation, and federal sector 

case processing procedures. Ibid. 

86 USCCR, Asian Americans in the 1990s, p. 198. 

87 USCCR, Overcoming the Past, pp. 297–98. 88 EEOC Interrogatory, pp. 23–24. 
Staff Draft May 2004 57

In addition, EEOC continues to establish and maintain collaborative partnerships with 

employer and advocacy groups. Among the employer groups are chambers of commerce, 

including minority chambers; the Society of Human Resource Managers; Equal Employment 

Advisory Council; and national Industry Liaison Groups. Advocacy groups with which it works 

include the National Association for the Advancement of Colored People (NAACP), the League 

of United Latin American Citizens (LULAC), Mexican American Legal Defense and 

Educational Fund (MALDEF), the American-Arab Anti-Discrimination Committee, the 

Organization of Chinese Americans, and the Rainbow/PUSH Coalition. 

EEOC also partners with federal, state, and local government agencies to reach 

employers and the public. For example, it has offered joint programs with DOJ’s Office of 

Special Counsel for Immigration Related Concerns and its Community Relations Service and the 

Department of Labor’s Wage and Hour Division and its Office of Federal Contract Compliance 

Programs. Several EEOC offices have created partnerships with Mexican consulates in their 

jurisdictions to reach the immigrant and limited-English-speaking populations. In addition, many 

district offices join with the FEPAs in their jurisdictions to educate employers and the public.89 

In regard to persons with limited English proficiency, EEOC assists through outreach 

programs and during the entire administrative charge filing and investigative process. Indeed, 

EEOC provides bilingual staff for translation services. Since the signing of Executive Order 

13166 in 2000,90 EEOC has adopted an agencywide plan to assist persons with limited English 

proficiency. Each district office trained staff on the executive order’s requirements, named a 

district coordinator, and developed a districtwide Language Assistance Plan to provide services 

within its geographic boundaries.91 Since 1992, the agency has provided outreach materials, 

brochures, and pamphlets in languages other than English, including Spanish, Arabic, Chinese, 

Korean, Vietnamese, Russian, Haitian-Creole, French, Urdu, Punjabi, Hindi, and Farsi.92 Field 

offices can obtain hard copies of publications or they may access the document via the internal 

Web site. EEOC distributes these documents at outreach, education, and technical assistance 

events. Of note, field offices have developed materials in additional languages to meet the 

specific needs of local communities in their jurisdictions.93

In 2000, the Commission reported that each district office had only recently assigned a 

program analyst solely responsible for conducting outreach, although other staff still 

volunteered a modest amount time. The Commission recommended that outreach staff explore 

 

89 Ibid., p. 24. 

90 Executive Order 13,166, “Improving Access to Services for Persons with Limited English Proficiency,” 65 Fed. 

Reg. 50,121 (2000). Also on August 16, 2000, the Department of Justice issued Enforcement of Title VI of the Civil 

Rights Act of 1964—National Origin Discrimination Against Persons With Limited English Proficiency: Policy 

Guidance, 65 Fed. Reg. 50,123 (2000). 

91 EEOC Interrogatory, pp. 24–25. EEOC points out that when DOJ requested that agencies review and revise their 

plans in 2002, district offices reviewed Language Assistance Plans using the most recent census data and updated 

them as necessary. Ibid. 

92 For a list of EEOC publications with the languages in which they are available, see U.S. Equal Employment 

Opportunity Commission, “Publications Request Form,”<http://www.eeoc.gov/publications.html> (last accessed 

Feb. 18, 2004). 

93 EEOC Interrogatory, p. 25. 
Staff Draft May 2004 58

ways in which other EEOC personnel could help conduct outreach. District offices, it said, 

should share innovative ideas and strategies for outreach at forums the headquarters office 

sponsored.94 

EEOC asserts that the district office program analyst is the manager/coordinator for 

outreach and technical assistance programs within the district’s jurisdiction. Other field staff who 

conduct outreach are the district directors; managers and staff of both the enforcement and legal 

units, including the regional attorney and trial attorneys; area and local office directors; ADR 

coordinators and mediators; administrative judges; and investigators. EEOC headquarters 

conducts a monthly conference call with all program analysts/outreach coordinators, during 

which time ideas and strategies are discussed. In August 2001, all program analysts/outreach 

coordinators attended a weeklong training conference that included panel discussions on best 

practices and strategies for outreach. District offices also submit quarterly reports of significant 

outreach events, which are compiled into a national report that is shared with all offices and 

posted on the EEOC intranet. District offices submit copies of locally developed materials to the 

national outreach coordinator, who shares them with all offices. In FY 2003, the annual 

EEOC/FEPA conference recognized several offices for their best practices in outreach programs 

conducted in partnership with their local FEPAs. The agencywide newsletter, “EEOC Mission,” 

also highlights strategies and best practices.95 

EEOC’s Small and Mid-Sized Business Initiative was designed to increase business 

owners’ access to information about antidiscrimination laws and to promote voluntary 

compliance. Still, in 2000 small-business owners’ presentations at EEOC meetings revealed a 

need for information about the agency and the statutes it enforced. Furthermore, small-business 

participation in mediation was lacking, suggesting a need for outreach to explain the ADR 

program. The Commission recommended that to ensure the promotion of mediation within the 

small-business community, EEOC should use the nationwide Small Business Development 

Centers and the Small Business Administration district offices to disseminate information to 

business owners.96 

 All of EEOC’s education and outreach programs provide information about 

employment discrimination. Examples of such programs include a speakers bureau, training and 

technical assistance, a small-business initiative, and mediation. Other sources of information on 

employment discrimination are EEOC publications, its recently revamped Web site, its small 

business Web page, and OLC guidance letters. Recent communication from EEOC states that 

the agency has implemented the Freedom to Compete Initiative.97 

 

94 USCCR, Asian Americans in the 1990s, p. 294. 

95 EEOC Interrogatory, pp. 25–26. 

96 USCCR, Overcoming the Past, pp. 294–95. 97 See EEOC Interrogatory, pp. 27–31, for a detailed discussion of the education and outreach programs. Freedom to 

Compete Initiative activities include public announcements; and outreach activities to build partnerships and 

strategic alliances with groups and organizations that traditionally do not engage with the agency. See Brenner May 

17 e-mail, p. 9. 
Staff Draft May 2004 59

The Commission’s 2000 report indicated that some populations were reluctant to 

participate in mediation, likely due to language and cultural barriers.98 The Commission 

therefore recommended that EEOC initiate supplementary mediation outreach efforts to reach 

such underserved populations. EEOC should contact appropriate organizations and advocacy 

groups for input and involvement. Finally, the Commission said district office ADA coordinators 

and outreach program analysts should collaborate to identify communities within their 

jurisdiction that participate in mediation at a lower rate than others. 

EEOC identifies underserved communities in a number of ways. ADR coordinators 

contact program analysts in district offices and also affiliate with national and local mediation 

groups, the bar, advocacy groups, employer organizations, and community resources. Many of 

these groups have actively promoted EEOC’s mediation program and invited the agency to 

participate in regular local membership meetings and national conferences. For example, the 

Rainbow/PUSH Coalition invited EEOC to conduct a workshop on its mediation program at the 

coalition’s national convention in January 2004 in New York City. Such groups have 

participated in local outreach and training events that EEOC sponsored.99 

Among this section’s key points are: 

 EEOC reaches underserved minority groups and areas through community forums and 

town hall meetings, expanded presence activities with local community-based groups 

away from the district offices, and engagement with ethnic media. 

 OLC engages in extensive outreach, including educating employers, the public, and 

persons with disabilities or limited English proficiency about each other’s rights; EEOC 

continues its collaborative partnerships with employer groups, advocacy groups, and 

federal, state and local government agencies; and publishes documents in multiple 

languages. 

 The program analyst in each district office is the manager/coordinator for outreach and 

technical assistance programs within the district’s jurisdiction. ADR coordinators 

collaborate with program analysts, and also affiliate with national and local mediation 

groups, the bar, advocacy groups, and employer organizations in order to identify 

communities that ADR underserved. 

 Education and outreach programs that provide information about the employment 

discrimination laws that EEOC enforces and the EEOC charge/complaint process include 

fee-based training and technical assistance programs, a small-business Web page, OLC 

guidance letters, and mediation. 

Enforcement Activities 

The Priority Charge Handling Procedures (PCHP) were initiated in 1995.100 PCHP has 

the goal of reducing charge backlog that had burdened EEOC for over a decade and improving 

 

98 USCCR, Overcoming the Past, p. 279. 

99 EEOC Interrogatory, p. 31. 

100 USCCR, Overcoming the Past, pp. 102, 114. 
Staff Draft May 2004 60

the quality of investigations through prioritization and early screening of charges. PCHP 

rescinded EEOC’s full investigation policy which required investigation of every charge. With 

PCHP, immediately following intake, charges are prioritized into “A,” “B,” or “C” categories. 

“A” charges are those that fall within the National Enforcement Plan or the Local Enforcement 

Plan, as well as where further investigation will probably result in a cause finding. “B” charges 

are those that initially appear to have some merit, but which require additional evidence to 

determine whether continued investigation is likely to result in a cause finding. “C” charges are 

those that are dismissed on the grounds that there is sufficient information to conclude that 

further investigation will not likely result in a cause finding. The Commission said in 2000 that 

PCHP encouraged district offices latitude to develop procedures for processing charges. This 

invariably resulted in variation among district offices in charge intake, communication methods 

with charging parties, and charge categorization reviews. Availability of resources and existing 

caseload also determined the strategies district offices used to process charges. The Commission 

recognized that district offices should have latitude in charge handling procedures; however, 

EEOC should develop and disseminate guidance and establish criteria and standards that all 

district offices must follow. In addition, the headquarters office must provide guidance and 

monitor performance to ensure consistency in charge handling across the nation. EEOC should 

also establish the means by which district offices share proven ideas and resources electronically, 

such as an electronic newsletter or chat room.101

EEOC has not developed and disseminated guidance or established criteria and standards 

that all district offices must follow in charge handling. The agency says it has processes to ensure 

consistency, but allows flexibility to enable development of best practices. Foremost, PCHP sets 

forth the procedures for case categorization. Next, staff attend regular investigator training that 

addresses the criteria for case categorization. Then, during intake, intake staff assess potential 

charges and counsel potential charging parties to help them make informed decisions about filing 

charges. Furthermore, during technical assistance site visits, OFP routinely reviews the accuracy 

and appropriateness of the cases categorized, as well as open and closed charge files. EEOC 

points out that one of its GPRA measures is the accuracy of charge prioritization. It claims that 

since this measure was adopted, the agency has consistently met its goal of at least 90 percent of 

the charges being appropriately categorized. OFP shares best practices identified during such 

visits with field offices in meetings and annual conferences, through internal agency memoranda, 

and postings on the internal Web site.102

CEP required district offices to develop pilot programs to implement strategies for 

improving charge intake. The Commission said in 2000 that CEP’s proposed strategies included 

extending office hours, providing rotational units rather than dedicated intake units,103 combining 

intake with other investigative functions, and elevating the importance of the intake function. 

The Commission recommended that district offices implement some of these procedures to make 

 

101 Ibid., pp. 273–74. 

102 EEOC Interrogatory, pp. 18, 32. 

103 In rotational units, investigators staffed the intake unit on a daily or weekly basis as opposed to dedicated units, 

which only have staff who have been assigned to them. See USCCR, Overcoming the Past, pp. 275–76. 
Staff Draft May 2004 61

the charge filing process more accessible and less burdensome. It also recommended that EEOC 

continually assess the intake function.104

EEOC has run pilot programs aimed at enhancing charge intake or charge processing. 

The agency later adopted those programs and commensurately revised standard operating 

procedures. There is evidence of two successful pilot programs: mobile charge intake units in 

remote areas and “one-stop shopping” collaborations with other federal agencies. OFP assesses 

the use and success of pilot programs in routine technical assistance field office visits, while 

evaluating office performance, and in the appraisal of the district directors. EEOC asserts that 

this is a formal evaluation. In regard to extending office hours and providing rotational units, in a 

recent communication with the Commission, EEOC states that staff work outside normal 

working hours. In many field offices, field staff are available to the public in the weekends and 

evenings during expanded presence events. Many district offices, including Atlanta, Cleveland, 

and San Antonio, assign staff on rotating basis to conduct intake.105 

One-fifth of the charges citing ADA involved “miscellaneous” disabilities, such as 

“mental retardation,” allergies, and speech impairments, each less than 3 percent of all ADA 

charges. The Commission further reported in 1998 that “other” disabilities, not specifically 

identified in the EEOC charge data system, accounted for 23 percent of all ADA charges. Thus, 

the Commission advised EEOC to consider revising its disability categories, to expand some and 

collapse some of the less frequently noted. EEOC, it added, should work with the disability 

communities to determine the types of disabilities to track.106 

EEOC now indicates that through the Integrated Mission System (charge tracking 

system) it collects data for 43 distinct disabilities. Staff add new disabilities to the system as they 

are identified through charge activity and advocacy group input. For example, EEOC added posttraumatic stress disorder as a basis because of its significant presence in the general population. 

EEOC also now engages with the disability community, and cited its field legal units’ ongoing 

relationship with offices of the National Association of Protection and Advocacy System as one 

example.107 

Among this section’s key points are: 

 EEOC has not developed and disseminated guidance or established criteria and standards 

that all district offices must follow in charge handling. The agency ensures consistency in 

charge handling in other ways, including use of PCHP, staff training, and OFP review 

during on-site technical visits; however, EEOC allows flexibility to enable development 

of best practices. 

 Successful pilot programs to enhance charge intake or charge processing have been 

implemented, and standard operating procedures have been appropriately revised. 

 

104 USCCR, Overcoming the Past, pp. 275–76. 105 EEOC Interrogatory, p. 33; Brenner May 17 e-mail, p. 10. 

106 USCCR, Helping Employers Comply with the ADA, p. 267. 107 EEOC Interrogatory, pp. 33–34. 
Staff Draft May 2004 62

 EEOC uses the EEO-1 form to collect data on the participation rates of minorities and 

women in upper management positions from private sector companies and may use the 

information to make strategic choices about charge development. 

 To ensure currency, EEOC adds new disability codes to its Integrated Mission System as 

they are identified through charge activity and input from advocacy groups. 

Complaint Processing 

This section focuses on complaint processing in the private sector. Between 20 and 50 

percent of formal inquiries became complaint charges in various district offices, the Commission 

reported in 2000. Further, a 1998 Commission study found that close to half of all ADA cases 

resulted in no cause outcomes.108 To improve intake procedures so that customers benefit, the 

Commission recommended in 2000 that EEOC implement internal requirements. First, district 

offices should monitor charge inquiries to determine why they were not becoming charges. 

Second, staff should survey charging parties after intake sessions to receive feedback on 

experience with EEOC. Third, enforcement supervisors in district offices should regularly 

evaluate intake sessions firsthand to provide constructive feedback to staff on how to improve 

intake.109 In addition, the Commission’s 1998 report stated that EEOC needed to conduct an 

internal audit to examine why charge processing time did not decrease with the institution of 

PCHP.110

EEOC points out that more thorough counseling of potential charging parties at intake 

results in fewer “C” charges being filed. Addressing charge monitoring, the agency explains that 

initial charge categorization at intake may involve consultation with supervisors and/or 

supervisory review. In some instances, charge categorization also undergoes upper management 

review in collaboration with legal and/or enforcement staff. OFP annually reviews a sample of 

case files for categorization accuracy. In FY 2001 and 2002, a review of charge files found the 

accuracy of district office categorization at 91.1 percent and 90 percent, respectively, thus 

meeting or exceeding the GPRA goal, which is set at 90 percent. In light of this, EEOC 

indicates it does not need the services of an outside contractor to review case files and ensure 

investigations are handled properly.111 

Customer service satisfaction of the intake phase is measured in different ways. 

According to EEOC, charging parties have direct contact with field office supervisory staff and 

OFP headquarters staff and therefore have the opportunity to express satisfaction or 

dissatisfaction. Since field office supervisors frequently participate in the intake process, they 

have firsthand knowledge of the process. Field office managers regularly assess the overall 

quality of intake services. OFP staff evaluate intake operations as a part of standard technical 

assistance visits. In addition, both new and advanced skills training for investigators include 

design and development of interviewing techniques. Moreover, district offices gather feedback 

 

108 USCCR, Helping Employers Comply with the ADA, p. 266. 

109 USCCR, Overcoming the Past, p. 275. 

110 USCCR, Helping Employers Comply with the ADA, p. 267. 111 EEOC Interrogatory, pp. 34–36. 
Staff Draft May 2004 63

from stakeholders and members of the public during respective meetings.112 There is no evidence 

that staff now survey charging parties after intake sessions to receive feedback on their 

experience with EEOC. In a recent communication with the Commission EEOC states: “Surveys 

used to be distributed by field offices to potential charging parties and responses were collected 

by EEOC’s Office of Research Information. However, response rates were so low as to not 

provide a statistically valid sample.”113

Among the key points of this section are: 

 EEOC indicates that thorough counseling of potential charging parties at intake in 

accordance with the PCHP results in fewer “C” charges being filed. 

 Initial charge categorization at intake may include supervisory review and consultation. 

On occasions, upper management legal or enforcement staff collaborate to review charge 

categorization. OFP’s FY 2001 and 2002 annual review of a sample of case files for 

accuracy in categorization met or exceeded the GPRA target established for this 

indicator, which was 90 percent. 

 Customer service satisfaction during the intake phase is ascertained in different ways. 

Charging parties have direct contact with field office supervisory staff and OFP 

headquarters staff and can express their satisfaction or dissatisfaction; field office 

managers regularly assess the overall quality of intake services; and district offices gather 

feedback from their network of stakeholders. 

 There is no evidence that staff now survey charging parties after intake sessions to 

receive feedback on their experience with EEOC. 

Investigations 

In 2000, the Commission recommended that OFP and OLC work together to ensure that 

the investigative procedure guidelines kept current with changes in law that might affect charge 

processing. It said a task force should be created to determine if existing procedures were 

appropriate to the types of charges in the agency’s inventory; there were frequently occurring 

issues not addressed by the procedures; more useful examples of investigative scenarios could 

set the context for investigators; and there were more efficient methods for conducting 

investigations given advances in technology and research methods.114

EEOC did not establish a task force, but assigned headquarters staff in OFP and OLC to 

coordinate all procedural amendments to EEOC regulations, compliance manual sections, and 

other guidance. Thus, OLC drafts all regulatory changes and OFP reviews and comments on 

them, while OFP drafts compliance manual procedures and OLC reviews them for legal 

 

112 Ibid., pp. 34–35. 

113 Brenner May 17 e-mail, p. 11. 

114 USCCR, Overcoming the Past, p. 280. 
Staff Draft May 2004 64

sufficiency. Moreover, an EEOC order establishes a formal interoffice review and comment 

process that most procedural guidance goes through before issuance.115 

Relative to the number of charges filed, the Commission’s 2000 report stated that the 

number of on-site visits was small, and such visits were increasingly targeted to “A” cases. As 

previously mentioned, “A” charges are those charges that fall within the National or Local 

Enforcement Plan and those where further investigation will probably result in a cause finding. 

The Commission said the agency should continue to emphasize “A” cases, but it should also 

increase on-site investigations for “B” charges that merited site visits. However, the Commission 

cautioned that resources dedicated for on-site visits must be used judiciously. Thus, EEOC staff 

should take full advantage of on-site visits to also conduct outreach and maximize the power of 

limited resources.116 

EEOC now offers data for the period FY 1998 to 2003 to show that on-site visits have 

increased. The Commission’s examination shows that the number of “A” charge on-site visits 

grew from 1,505 in FY 1998, peaked at 4,558 in 2001, and thereafter decreased steadily to 2,353 

in FY 2003. These decreases in the number of “A” charges with on-site visits, however, have not 

fallen below the pre-2000 numbers (see figure 3.3). The trend in the number of “B” charge site 

visits between FY 1998 and 2003 showed year-to-year fluctuation, although an overall upward 

trend, hinting that EEOC may be emphasizing site visits for “B” charges. Finally, there is no 

evidence that EEOC staff take full advantage of on-site visits to also conduct outreach and 

maximize the power of limited resources.117

 

115 EEOC Interrogatory, pp. 36–37. EEOC now says: “OFP drafts Volume I of the Compliance Manual, OLC drafts 

Volume II.” See Brenner May 17 e-mail, p. 11. 

116 USCCR, Overcoming the Past, pp. 280–81. 

117 EEOC now states: “[S]taff have conducted outreach in conjunction with on-site investigation in appropriate 

circumstances. In most situations though, this is not practicable.” See Brenner May 17 e-mail, p. 11. 
Staff Draft May 2004 65

FIGURE 3.3 

A Comparison of EEOC “A” and “B” Charges with On-Site Visits, 1998–2003

2725 2837

5705

6048

5361

4065

1505

1921

4175

931

699

1270

1684

3398

2353

4558

1306 1494

0

1000

2000

3000

4000

5000

6000

7000

1998 1999 2000 2001 2002 2003

Fiscal year

Charges with on-site visits

All charges with on-site visits "A" charges with on-site visits

"B" charges with on-site visits

 Note: FY 2003 data are preliminary. 

 Source: EEOC Interrogatory, pp. 37–38. 

Among this section’s key points are: 

 OFP and OLC headquarters staff work together to ensure that guidelines for investigative 

procedures reflect changes in the law. 

 Trend data on “B” charge site visits hint that EEOC may be emphasizing on-site visits in 

these cases. Between FY 1998 and 2003, “B” charge site visits showed year-to-year 

fluctuation, but the overall trend is upward. 

 There is no evidence that EEOC staff take full advantage of on-site visits to also conduct 

outreach and maximize the power of limited resources. In a recent communication with 

the Commission, EEOC says that this is not practicable in most situations. 

Mediation 

Although EEOC prepared a Mediation Deskbook in 1999 outlining procedures, the 

Commission said in 2000 that the document did not establish formal guidelines for mediation 

units in district offices. As a result, programs’ approaches to mediation tended to differ. While 

there should be some latitude to foster creativity in district mediation programs, the Commission 

recommended that EEOC prepare standard criteria for program monitoring and evaluation. These 

standards should be applied to every district office and include accountability standards for 
Staff Draft May 2004 66

maintaining a consistent, fair, and impartial program. The Mediation Deskbook should be 

updated regularly.118

In April 2002, the mediation program was expanded so that “A” cases, including those at 

the conciliation stage, could qualify. As a result, EEOC revised and reissued relevant portions of 

the Mediation Deskbook.119 Since 1999, the agency has also published and disseminated other 

operational guidance to address new problems and assisted the field offices in developing and 

managing their expanding ADR program. There is no evidence that EEOC prepared standard 

criteria for program monitoring and evaluation, which should be applied to every district office 

and include accountability standards for maintaining a consistent, fair, and impartial program.120

Instead, EEOC states that the Media Deskbook and the new guidance form the framework for 

program operation and evaluation. Recently, EEOC developed an ADR resource manual and 

offered it in print and CD-ROM format. This manual has been distributed to field offices and 

contains outreach materials, slide shows, and examples of successful field office practices and 

techniques to promote the ADR program and to demonstrate the benefits of mediation to 

parties.121 

According to EEOC procedures, all “B” charges are supposed to be given the option of 

mediation. The Commission said in 2000 that this was unlikely to happen in light of resource 

limitations and the fact that “B” charge cases made up the majority of EEOC’s inventory. Thus, 

the Commission recommended that EEOC develop criteria for determining which “B” charges 

were suited for mediation.122

All “B” charges are now eligible for mediation, except those that raise class, systemic, or 

Equal Pay Act claims. Only “C” charges are ineligible for mediation. When allocating funds for 

mediation programs in district offices, EEOC now considers the projected pool of charges 

eligible for mediation, the number of mediation staff available in each office, and the overall 

level of funding provided for the mediation contract program. All district offices receive some 

funding so that they can continue their contract mediation program. EEOC does make 

adjustments during the year to meet the needs of specific offices.123 

 The number of mediations conducted reached a new plateau following FY 1999. Rising 

from 7,397 in FY 1999, the number of mediations conducted reached a height of 11,595 in FY 

 

118 USCCR, Overcoming the Past, p. 278. 

119 EEOC Interrogatory, p. 40. 

120 EEOC now states that it has commissioned “three studies, using appropriate standard criteria and social science 

methodology . . . to evaluate its mediation program: (1) An Evaluation of the Equal Employment Opportunity 

Commission Mediation Program, September 2000; (2) The EEOC Mediation Program: Mediators’ Perspective on 

the Parties, Processes, and Outcomes, August 2001; and (3) An Investigation of the Reasons for the Lack of 

Employer Participation in the EEOC Mediation Program, December 2003, all by Dr. E. Patrick McDermott, 

Primary Researcher, et al., Franklin P. Purdue School of Business, Center for Conflict Resolution, Salisbury State 

University. These studies and their summaries are available on EEOC’s Web site at <www.eeoc.gov/mediate/mcdintro.html>. See Brenner May 17 e-mail, p. 12. EEOC did not include this information in its interrogatory response. 

121 EEOC Interrogatory, p. 32. 

122 USCCR, Overcoming the Past, p. 278. 123 EEOC Interrogatory, p. 8. 
Staff Draft May 2004 67

2003 (see table 3.3). The trend in the number of mediations resolved is similar, attaining a height 

of 7,990 in FY 2003 from 4,833 in FY 1999. The percentage of mediations resolved ranged 

between 64.8 in FY 2000 to 68.9 FY 2003.124 

TABLE 3.3 

EEOC Mediations Conducted and Resolved, 1999–2003 

Fiscal 

year 

Number

conducted

Number

 resolved

Percent conducted

 resolved*

1999 7,397 4,833 65.3%

2000 11,478 7,438 64.8%

2001 10,588 6,987 65.9%

2002 11,457 7,858 68.5%

2003 11,595 7,990 68.9%

*Calculated from EEOC data on number of mediations conducted and resolved. 

Source: EEOC Interrogatory, p. 41.

EEOC’s mediation program was generally successful and considered an integral tool for 

eliminating unfair employment practices. The Commission’s 2000 report noted, however, that 

mediation may not always get to the root of the alleged employment discrimination. The 

Commission stated that mediation should be used where appropriate and settlement agreements 

should anticipate that the same problem might recur. Thus, in settlements reached through 

mediation, mediation staff should recommend provisions for change in employer practices or 

policies that might have discriminatory effects.125 

Agency officials now state that the ADR program offers charging and respondent parties 

opportunity to reach mutually satisfactory resolutions. This opportunity is offered in cases where 

mediation took place soon after charge filing when investigation was incipient. In these 

instances, resolutions are not required to include statements specifying employers change a 

practice or policy, or prevent a recurrence of an allegedly discriminatory practice. EEOC states 

that it has no control over the inclusion of provisions that relate to employment practices or 

policies since parties tailor agreements to case circumstance. On the other hand, when mediation 

is used at the conciliation stage, following a finding of discrimination, an EEOC employee joins 

the conflicting parties to represent EEOC and the public interest. In such a situation, the 

settlement agreement may appropriately include changes in the respondent’s practices or 

policies. Finally, since EEOC mediation agreements are confidential, the agency does not 

conduct a compliance review regarding implementation of the terms of mediation agreements 

except in the event of a breach.126 

 

124 EEOC’s interrogatory response included data for FY 1998 through FY 2002. In a recent communication, EEOC 

states: “The timeframe is incorrect. Only pilot programs were in place in FY 1998.” The recent communication 

included data for FY 2003 and revised figures for the number of mediations resolved for FYs 2001 and 2002. See

Brenner May 17 e-mail, p. 13. 

125 USCCR, Overcoming the Past, p. 278. 126 EEOC Interrogatory, p. 40. 
Staff Draft May 2004 68

Among the key points of this section are: 

 Since the publication of the Mediation Deskbook in 1999, EEOC has prepared additional 

guidance to address new issues. There is no evidence, however, that EEOC prepared 

standard criteria for program monitoring and evaluation that should be applied to every 

district office.

 Some “A” cases are now eligible for mediation; EEOC amended the Mediation Deskbook 

to reflect this guidance. All “B” charges are eligible for mediation, except those that 

involve class, systemic, or Equal Pay Act claims. Only “C” charges are ineligible for 

mediation. 

 In general, settlement agreements between mediating charging and respondent parties are 

not required to include provisions that result in a change in an employer’s practices or 

policies, or that prevent a recurrence of an allegedly discriminatory practice. 

Special Charges 

The Commission’s 2000 report supported EEOC’s emphasis on class and systemic 

charges. EEOC commissioners, it said, should review reports derived from EEO-1 data that 

identify discriminatory trends to determine if systemic investigation should be initiated.127

District office and legal staff too needed to use EEO-1 data regularly for the same purpose. 

Further, intake staff should decide when individual charges should be broadened if evidence 

suggested more victims.128

EEOC staff say the agency uses EEO-1 data in the development of class, systemic, or 

commissioner charges, but offered no supporting evidence. A commissioner charge is a charge 

that is initiated based on information from a commissioner, an EEOC staff member, or any 

outside source on potential violation of statutes. It is usually used in situations where 

discrimination victims are unaware of their rights or of the occurrence of discriminatory 

practice.129 According to the agency, the internally developed EEO-1 desktop software allows 

investigators and attorneys to review readily an employer’s EEO-1 reports and to compare that 

employer’s EEO profile with others in the same industry and geographic area.130 EEO-1 reports 

also contain workforce statistics by gender, race, and ethnicity for nine occupational categories. 

They include Standard Industrial Classification (SIC) designations, thus enabling the desktop 

user to compare an employer’s utilization of women and minorities with that of similar SIC-code 

employers located in a common recruiting or commuting area.131

 

127 EEOC will be revising the EEO-1 form. See “Commission Poised to Delay EEO-1 Changes Until 2005; Final 

Format Expected in Spring,” Daily Labor Report, December 2003, p. A-1. As of May 2004, a final EEO-1 form had 

not been released. 

128 USCCR, Overcoming the Past, p. 282. 

129 Ibid., pp. 160–61. 130 All employers with 100 or more employees, 50 or more if they are federal contractors, must file an EEO-1 report 

each year. See EEOC Interrogatory, p. 43. 131 EEOC Interrogatory, p. 43. 
Staff Draft May 2004 69

Despite the importance of commissioner charges and directed investigations, the 

Commission’s 2000 report showed that they made up a minuscule percentage of EEOC’s charge 

inventory.132 Between FY 1993 and 1999, the agency annually filed between 19 and 48 

commissioner charges. Besides, directed investigations issued under the Equal Pay Act and ADEA 

decreased from 304 in FY 1993 to 66 in FY 1999.The Commission advised EEOC to reemphasize the importance of commissioner charges and direct investigations, and encourage field 

offices to add these charges to their charge inventories. District offices, it added, should set a goal 

for commissioner-initiated charges to be conducted based on staff size and charge inventory.133

The Commission finds that EEOC has not increased commissioner charges over the past 

six years. Agency data show that four commissioner charges were filed in FY 2002 and one in 

FY 2003. EEOC says the vast majority of its class and systemic cases do not stem from 

commissioner charges, but the public, including individual charges expanded or amended during 

investigation to include class issues. EEOC indicates that a commissioner charge is just one of 

several ways to initiate class and systemic cases, and that the agency’s commitment to pursue 

this type of case is evident in an examination of its litigation docket as a whole. Over the past six 

years, EEOC says there has been a substantial and continuing increase in the number of class and 

systemic cases.134 The number of multiple aggrieved cases on the litigation docket and the 

percentage of total cases in litigation are shown in table 3.4. Commission analysis shows that 

with the exception of FY 2000, the number of multiple aggrieved cases grew each year, most 

notably in 1998 and 1999. Except for FY 1999, the percentage of multiple aggrieved cases to all 

litigation grew slightly every year (see table 3.4). 

TABLE 3.4 

EEOC Multiple Aggrieved Cases on the Litigation Docket as 

a Percent of Cases in Litigation, 1997–2003

Fiscal 

 year 

Number of multiple 

aggrieved cases on 

docket 

Percent of multiple 

aggrieved cases 

cases to total 

1997 112 30% 

1998 151 33% 

1999 187 32% 

2000 180 39% 

2001 210 40% 

2002 215 42% 

2003 220 41% 

Source: EEOC Interrogatory, p. 9. 

 

132 The Commission’s 2000 report found that agency enforcement staff could initiate a charge based on information 

from an EEOC commissioner, any EEOC staff, or an outside source on potential violations of statutes. Such 

commissioner chargers or directed investigations were usually used in situations where victims were unaware of 

their rights or of the occurrences of discriminatory practice. The term commissioner charge referred specifically to 

Title VII claims, while directed investigation applied to ADEA and Equal Pay Act claims. See USCCR, Overcoming 

the Past, pp. 160–61. 133 USCCR, Overcoming the Past, p. 282. 134 EEOC Interrogatory, pp. 9–10. Multiple aggrieved cases are cases that challenge a policy that applies to a group of 

similarly situated individuals and cases challenging a practice that affects a group of similarly situated individuals. 

Brett Brenner, attorney advisor, U.S. Equal Employment Opportunity Commission, e-mail, Apr. 29, 2004. 
Staff Draft May 2004 70

Finally, district offices are not required to initiate a certain number of commissioner 

charges in their performance goals based on the number of staff and charge inventory. They are, 

however, expected to develop class and systemic cases for resolution in either the administrative 

process or in litigation.135 

Among this section’s key points are: 

 EEOC says staff use EEO-1 data in the development of class, systemic, or commissioner 

charges. The EEO-1 desktop software allows investigators and attorneys to review and 

compare employers’ EEO profiles with others in the same industry and geographic area. 

 The vast majority of EEOC’s class and systemic cases do not stem from commissioner 

charges, but result from charges that members of the public filed. 

Charge Resolutions 

The use of PCHP stopped the substantive use of letters conveying the decision that 

investigation did not find a violation (letter of determination).136 Instead, as the Commission 

noted in 2000, EEOC implemented a short standardized determination letter stating that the 

investigation failed to disclose a violation. The Commission recommended that EEOC inform 

the charging party of how it reached the determination and that staff conduct predetermination 

interviews with charging parties giving them the opportunity to provide any additional 

information before having their case dismissed.137 

There is no evidence that EEOC staff conduct predetermination interviews. EEOC also 

did not institute an explanatory letter but now informs charging parties that it has arrived at a no 

cause determination through an in-person interview, telephone or conference call, a written 

statement, and referrals to a private attorney.138

Among this section’s key points are: 

 There is no evidence that EEOC staff conduct predetermination interviews. 

 EEOC did not institute an explanatory letter informing the charging party of how it 

reached a no cause determination. 

Charge Processing Time 

EEOC guidelines, the Commission said in 2000, indicated that the investigation of a 

charge should generally be completed within 120 days of the time the charge was initially 

categorized. However, tight resources caused EEOC to amend this goal. Data from EEOC’s 

 

135 EEOC Interrogatory, p. 43. 

136 A no cause letter of determination is issued when EEOC has not found sufficient evidence to support a finding of 

discrimination. 

137 USCCR, Overcoming the Past, p. 283. 138 See EEOC Interrogatory, pp. 44–45, for details on these options. EEOC now states that “the essence of both 

[Commission] recommendations has been EEOC practice for many years, . . . although it may not conform to the 

precise means the Commission has in mind.” See Brenner May 17 e-mail, p. 14. 
Staff Draft May 2004 71

Charge Data System showed that the average processing time for a charge was 325 days, but had 

declined since the implementation of PCHP. The Commission recommended that EEOC reestablish the 120-day goal for processing charges.139

EEOC replies that its guidelines do not and never have mandated that charges be 

completed within 120 days. The agency reports that in FY 2002, the average processing time was 

171 days.140 

 Among this section’s key points is: 

 In FY 2002, the average charge processing time was 171 days. 

Litigation 

In FY 1997, EEOC reaped substantial benefits totaling $307.3 million through the 

administrative process (inclusive of the mediation program) and litigation (on cases mainly 

involving Title VII and ADEA). The Commission urged EEOC to continue to pursue benefits of 

this magnitude on behalf of charging parties.141 

Analysis of EEOC data shows that between FY 1998 and 2002 monetary benefits 

collected from the administrative process and litigation fluctuated. Total monetary benefits rose 

to a sizable $308.9 million in FY 1999, from $264.7 million in FY 1998, decreased to $295.5 

million and $299.0 million in FY 2000 and FY 2001, respectively, and reached a height of 

$310.5 million in FY 2002 (see table 3.5). Thus, for two of the five years, FY 1999 and 2002, the 

total benefits collected exceeded that collected in FY 1997. 

TABLE 3.5 

EEOC Monetary Awards Collected from Administrative Process and Litigation, 

1998–2002 (in millions)

Fiscal 

year 

Administrative 

process benefits 

Litigation 

benefits

Total 

benefits

Administrative 

process as 

percent of total 

1998 $169.2 $95.5 $264.7 63.9%

1999 $210.5 $98.4 $308.9 68.1%

2000 $245.7 $49.8 $295.5 83.1%

2001 $247.8 $51.2 $299.0 82.9%

2002 $257.7 $52.8 $310.5 83.0%

Source: EEOC Interrogatory, p. 46. 

The Commission’s analysis further discovers that EEOC obtained a larger proportion of 

monetary benefits through the administrative process than litigation; administrative process 

benefits as a percentage of all benefits ranged from 63.9 percent in FY 1998 to 83.1 percent in 

FY 2000 (see table 3.5). 

 

139 USCCR, Overcoming the Past, p. 283. 

140 EEOC Interrogatory, p. 45. 

141 USCCR, Overcoming the Past, p. 285. 
Staff Draft May 2004 72

Among the key points of this section are: 

 Total monetary benefits collected during the review period ranged from $264.7 million in 

FY 1998 to $310.5 million in FY 2002, although the trend showed fluctuation. 

 EEOC obtained a larger proportion of monetary benefits through the administrative process 

than litigation, from 63.9 percent in FY 1998 to a high of 83.1 percent in FY 2000. 

Staff Training 

The Commission said in 2000 that EEOC should more appropriately train legal, 

investigative, outreach, and mediation staff. For example, intake staff should receive training on 

interaction and communication skills since aspects of the jobs included explaining to charging 

parties their rights and merits of charges without discouraging filing. EEOC should also provide 

periodic training and refresher courses to enforcement staff on charge categorization criteria. 

Moreover, all EEOC staff could benefit from refresher courses and update training.142 

During the past five years, OGC offered several nationwide training programs on a host 

of appropriate topics to its different staff. Training programs included two OGC conferences for 

regional attorneys, supervisory trial attorneys, and selected senior trial attorneys; two OGC 

nationwide programs on class cases; a headquarters-developed negotiation and resolution 

program delivered in field offices to all investigators and attorneys; two nationwide OGC trial 

skills programs; and training activities for field staff.143 However, most training programs EEOC 

cited in its interrogatory responses were held between FY 1999 and 2002; exceptions were a 

telephonic conference in FY 2003 and effective negotiation and resolution training for some field 

legal and enforcement staff.144 

Among this section’s key points are: 

 Between FY 1999 and 2003, EEOC offered training for headquarters and field attorneys 

as well as field staff performing outreach and technical assistance. 

 Most training took place between FY 1999 and 2002. 

Oversight and Quality Assurance 

Corporate culture that reflected practices biased against minorities and women made it 

difficult for these groups to advance professionally. The Commission also stated in 2000 that the 

restructuring of the American economy led to conditions that intensified the glass ceiling (that is, 

women were not being promoted to high organizational levels), such as elimination of 

supervisory and low-level management positions. The Commission supported midlevel hiring 

and opportunities for managerial training to enhance diversity in supervisory and managerial 

 

142 Ibid., pp. 264, 274–76. 

143 See EEOC Interrogatory, pp. 46–48, for training details. 

144 Most field legal and enforcement staff received the effective negotiation and resolution training in FY 2002. See

Brenner May 17 e-mail, p. 16. 
Staff Draft May 2004 73

positions. Moreover, EEOC should include diversity issues in pertinent investigations and 

through commissioner charges.145

EEOC now relies on EEO-1 forms to collect data from private sector companies on the 

participation rates of minorities and women in upper management positions. The agency also 

sometimes uses these data to make strategic choices about charge development, or when it has 

reason to believe that a company has a discriminatory policy or practice, usually because of a 

charge already filed.146 EEOC has drawn on EEO-1 data to prepare special reports, including the 

recent Glass Ceilings: The Status of Women as Officials and Managers in the Private Sector

(2004) and Diversity in Law Firms (2003).147

The Commission is interested in EEOC’s ability to demonstrate linkage between inputs, 

such as funding, and outcomes, such as prejudice reduction. The agency claims that it is showing 

gradual progress in presenting to Congress annual performance budgets that link funding with 

different performance indicators. In the past few years, EEOC’s adoption of new finance, 

personnel, and program performance systems enhanced its ability to provide better funding and 

outcome information. According to officials, an important achievement during FY 2003 that 

helped EEOC create these linkages was the adoption of a new strategic plan for FY 2004–2009. 

As discussed earlier, the strategic plan contains outcome measures addressing the agency’s three 

strategic objectives: justice and opportunity, inclusive workplaces, and organizational 

excellence; as well as a program evaluation schedule.148

Among this section’s key points are: 

 EEOC has drawn on EEO-1 data to prepare special reports, such as Glass Ceilings: The 

Status of Women as Officials and Managers in the Private Sector (2004) and Diversity in 

Law Firms (2003). 

 EEOC is improving its ability to present annual performance budgets that link funding 

with performance indicator categories. EEOC’s adoption of new finance, personnel, and 

program performance systems recently enhanced its ability to provide better funding and 

outcome information. 

Coordination 

The National Enforcement Plan encouraged collaboration between field offices and Fair 

Employment Practices Agencies (FEPAs) in investigations and recommended that district offices 

solicit FEPA comments in developing Local Enforcement Plans.149 Unfortunately, in 1998, there 

was little coordination between FEPAs and EEOC field offices in investigations. Moreover, the 

 

145 USCCR, Overcoming the Past, p. 267. 146 EEOC Interrogatory, p. 33. 

147 See U.S. Equal Employment Opportunity Commission, “Special Reports,” <http://www.eeoc.gov/stats/reports/ 

index.html> (last accessed Mar. 31, 2004). 

148 EEOC Interrogatory, p. 11. 

149 EEOC contracts certified state and local employment agencies (FEPAs) to resolve charges under the statutes that 

EEOC enforces. See USCCR, Helping Employers Comply with the ADA, p. 48. 
Staff Draft May 2004 74

existing training offered annually at EEOC headquarters to FEPA directors was inadequate to 

meet the training needs of all FEPA staff. Therefore, the Commission recommended in 1998 that 

consistent with the National Enforcement Plan, EEOC should improve coordination between 

FEPAs and EEOC field offices in investigative activities and meet the training needs of all FEPA 

staff.150 

EEOC headquarters staff conduct an annual training conference for FEPA partners that 

centers on legal issues affecting their workloads and updates on emerging national problems. 

The FY 2003 EEOC/FEPA national conference, “A Partnership to Achieve a Fair and Inclusive 

Workplace,” included discussions on EEOC/FEPA joint litigations, strategies for EEOC/FEPA 

joint outreach and enforcement, and best practices.151 EEOC also says many district offices 

partner with FEPAs within their jurisdiction to provide training and outreach activities and 

collaborate with them on investigative efforts.152 

EEOC posted documents, regulations, and procedures on the Internet leading the 

Commission’s 2000 report to conclude that many people may not be able to retrieve the 

information because of lack of ready access to personal computers. At the same time, 

information was usually given when a charge was filed. As a result, the public may not 

necessarily know much about the complaint filing process, leading to misinformation or a lack of 

information about EEOC’s requirements, policies, and procedures. The Commission’s 2000 

report recommended that district offices compile organization and advocacy group referral lists 

so that when a charging party approached EEOC with a complaint outside the agency’s 

jurisdiction or with which it could not assist, charging parties would be expeditiously referred to 

the correct organization.153 

Field offices routinely screen potential charges for jurisdictional coverage during the 

intake process and appropriately refer the potential charging parties to external organizations 

and agencies. For example, if a potential charging party wants to file a sexual harassment charge 

against an employer with fewer than 15 employees, the office will counsel him or her about 

filing with the appropriate FEPAs and the varying time limits among FEPAs for filing charges. 

Field offices develop and maintain their own lists of resources, organizations, and advocacy 

groups based on geographical proximity and jurisdictional requirements. They identify these 

entities during ongoing outreach activities and form partnerships with them to jointly serve 

mutual stakeholders.154 

 

150 USCCR, Helping Employers Comply with the ADA, p. 246. 151 EEOC/FEPA National Training Conference, Agenda, “A Partnership to Achieve a Fair and Inclusive 

Workplace,” May 13–May 15, 2003. EEOC provided the FY 2003, FY 2002, and FY 2001 national conference 

agendas. 

152 EEOC Interrogatory, p. 49. 

153 USCCR, Overcoming the Past, p. 274. 154 EEOC Interrogatory, p. 50. 
Staff Draft May 2004 75

Among the key points of this section are: 

 Headquarters staff offer an annual training conference for FEPA partners on legal issues 

and updates on emerging national problems. Many district offices partner with FEPAs 

within their jurisdiction to provide training. 

 Field offices develop and maintain their own lists of resources, organizations, and 

advocacy groups, and appropriately refer potential charging parties to external 

organizations and agencies. 

Conclusion 

EEOC implemented few of the Commission’s previous recommendations. In some 

instances, the agency claimed that existing procedures suffice; for example, the agency did not 

evaluate its overall budgetary and staffing needs as the Commission recommended, arguing that 

it already annually conducts a full range of analysis in preparing its budget requests. In other 

instances, it opted for a different approach; for example, instead of creating a central technical 

assistance office at headquarters as the Commission recommended, it established a national 

outreach coordinator at OFP and an RF director at headquarters. 

 The agency’s existing organizational setup has not changed since the Commission’s 

2000 review. A recent NAPA study, however, proposed a major overhaul. 

The recently issued EEOC strategic plan for FY 2004–2009 centers on the three strategic 

objectives: justice and opportunity, inclusive workplace, and organizational excellence. Several 

outcomes with deadlines, as well as means/strategies, are associated with each strategic 

objective. The APP contains performance indicators for measuring progress in meeting targets 

set in the strategic plan. The strategic plan has scheduled program evaluations for mediation 

programs and administrative processing of private sector charges. During FY 2004, EEOC is 

establishing procedures for conducting program evaluations and preparing for assessment of 

private sector mediation programs during FY 2005. The agency’s output measures are mostly 

oriented to gauging results of process and not to determining the extent to which discrimination 

has been eradicates in employment. Both types of outcomes are essential to determining 

progress.155 

For the first time in seven years EEOC has no commissioner vacancies, and the position 

of general counsel is finally filled. Between FY 1998 and 2002, EEOC never received requested 

staffing and did not always receive requested budget. 

EEOC has issued guidance and information clarifying such terms as “health insurance 

and disability-based insurance,” “major life activity,” and “qualified individual.” However, little 

guidance has been issued since 2000. Moreover, the agency has not developed and disseminated 

guidance or established criteria and standards that all district offices must follow in charge 

handling. The agency permits flexibility to encourage development of best practices. It indicates 

 

155 EEOC argues: “Many of our measures in the Strategic Plan, which are not mentioned, get close to assessing the 

outcome of our work on employers and society. These are new measures and we are only beginning to develop 

approaches and expect to build data bases.” See Brenner May 17 e-mail, p. 4. 
Staff Draft May 2004 76

that processes are in place to ensure uniform standards are upheld. Further, EEOC has not issued 

an updated compliance manual. EEOC has a substantial amount of regularly updated guidance 

information on the its internal Web site that is accessible to all EEOC staff at any time. 

EEOC has implemented extensive education and outreach efforts, reaching underserved 

groups and areas through community forums and town hall meetings, expanded presence 

activities with local community-based groups away from the district offices, and engagement 

with ethnic media. In FY 2002, field and headquarters offices offered thousands of educational, 

training, and outreach events that reached more than 300,000 people. Field and headquarters 

offices also made 508 media presentations (including radio and TV interviews, talk shows, and 

press conferences) that provided substantive EEO information to thousands of stakeholders. 

Finally, EEOC offered a number of nationwide training programs for attorneys and field staff; 

however, few sessions have taken place since FY 2002. 
Staff Draft May 2004 77

Chapter 4: Department of Health and Human Services

The U.S. Department of Health and Human Services (HHS) originated as the Department 

of Health, Education, and Welfare (HEW) under President Dwight Eisenhower in 1953. In 1979, 

under the Department of Education Organization Act, Education became a separate department 

and HEW became HHS in 1980.1 HHS is the principal federal agency with responsibility for 

protecting the health of all Americans and providing essential health and human services, 

especially for those who are least able to help themselves. HHS provides services through 

federally funded grants and programs. As the largest federal grant-distribution agency, it 

provides some 60,000 grants a year and supports more than 300 programs that cover a broad 

spectrum of health-related activities. Eleven operating divisions administer the programs and 

grants.2

 In FY 2003, HHS had a budget of $502 billion and employed 65,500 persons.3 

Acronyms used throughout this chapter. Table 4.1 lists those referenced frequently. 

TABLE 4.1 

Acronyms in Chapter 4 

Annual Implementation Plan AIP 

Annual Operating Plan AOP 

Limited English Proficiency/Proficient LEP 

Office for Civil Rights OCR 

Office of the General Counsel OGC 

U.S. Department of Health and Human Services HHS 

Previous Commission Reviews of HHS 

In the 1990s, the U.S. Commission on Civil Rights released four reports that discussed 

HHS’ health care issues and policies, research programs, and civil rights enforcement: Civil 

Rights Issues Facing Asian Americans in the 1990s (1992); Federal Title VI Enforcement to 

 

1

 U.S. Department of Health and Human Services, “Historical Highlights,” <http://www.hhs.gov/about/hhshist.html> 

(last accessed Mar. 19, 2004). 

2

 The 11 operating divisions are the Administration for Children and Families, the Administration on Aging, the 

Agency for Healthcare Research and Quality, the Agency for Toxic Substances and Disease Registry, the Centers 

for Disease Control and Prevention, the Centers for Medicare and Medicaid Services, the Food and Drug 

Administration, Health Resources and Services Administration, the Indian Health Service, the National Institutes of 

Health, and the Substance Abuse and Mental Health Services Administration. See U.S. Department of Health and 

Human Services, “Organizational Chart,” <http://www.os.dhhs.gov/about/orgchart.html> (last accessed Apr. 22, 

2003); “Agencies in HHS,” <http://www.hhs.gov/about/index.html> (last accessed May 21, 2003); “HHS What We 

Do, HHS Operating Divisions,” <http://www.hhs.gov/news/press/2002pres/profile.html> (last accessed Feb. 24, 

2004) (hereafter cited as HHS, “What We Do”). 3

 HHS, “What We Do.” 
Staff Draft May 2004 78

Ensure Nondiscrimination in Federally Assisted Programs (1996); and The Health Care 

Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality—Vol. 

I: The Role of Government and Private Health Care Programs and Initiatives (1999) and Vol. II: 

The Role of Federal Civil Rights Enforcement Efforts (1999). Volume I of the health care report 

examined racial, ethnic, and gender disparities in health status, research, services, programs, and 

health care financing, and the role of the department and state and local agencies in providing 

health care services to minorities and women, while Volume II assessed civil rights enforcement 

at the department.4 The Commission made 234 recommendations to HHS, its Office for Civil 

Rights (OCR), and other components, including eight operating divisions.5

 This study examines 

whether HHS has implemented recommendations made in the earlier reports, and focuses on 

OCR, HHS’ enforcement unit. 

Mission and Responsibilities—OCR 

OCR’s mission is to prevent and eliminate discrimination and to enhance access to HHSfunded programs.6

 OCR enforces 18 federal civil rights statutes that collectively prohibit 

discrimination on the basis of race, color, national origin, age, disability, gender, or religion;7

 and 

strives to make civil rights integral to HHS.8 Among the key major statutes, regulations, and 

executive orders OCR carries out are: 

 Title VI of the Civil Rights Act of 1964.9

 

 The community service requirements of Titles VI and XVI of the Public Health Service 

Act, also known as the Hill-Burton Act.10 

 

4

 U.S. Commission on Civil Right (USCCR), Civil Rights Issues Facing Asian Americans in the 1990s, February 

1992 (hereafter cited as USCCR, Asian Americans in the 1990s); USCCR, Federal Title VI Enforcement to Ensure 

Nondiscrimination in Federally Assisted Programs, June 1996 (hereafter cited as USCCR, Federal Title VI 

Enforcement); USCCR, The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and 

Ensuring Equality—Vol. I: The Role of Government and Private Health Care Programs and Initiatives, September 

1999 (hereafter cited as USCCR, The Health Care Challenge, Vol. I); and USCCR, The Health Care Challenge: 

Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality—Vol. II: The Role of Federal Civil 

Rights Enforcement Efforts, September 1999 (hereafter cited as USCCR, The Health Care Challenge, Vol. II). 

5

 The Commission’s four reports were comprehensive reviews of every aspect of HHS and health care affecting 

minorities and women, including enforcement of Title VI and other statutes, health care, research, programs and 

initiatives, health-related policy guidance, and state and community involvement in health care delivery. The 234 

recommendations are a culmination of recommendations made in all four of the reports. 

6

 HHS Interrogatory, p. 1; U.S. Department of Health and Human Services, Office for Civil Rights, “OCR’s Mission 

and Vision,” July 2003, <http://www.os.dhhs.gov/ocr/mission.html> (last accessed Apr. 22, 2004) (hereafter cited as 

HHS, “OCR’s Mission”). 

7

 U.S. Department of Health and Human Services’ Response to the U.S. Commission on Civil Rights’ Interrogatory 

for Volume IV of the Ten-Year Review of Civil Rights Enforcement, Office for Civil Rights, Oct. 15, 2003, pp. 1–2 

(hereafter cited as HHS Interrogatory). See also USCCR, The Health Care Challenge, Vol. II, p. 17. 

8

 HHS Interrogatory, p. 1; HHS, “OCR’s Mission.” 

9

 Pub. L. No. 88-352, tit. VI, 78 Stat. 252 (codified as amended at 42 U.S.C. §§ 2000d–2000d-(7) (2004)); OCR is 

responsible for enforcing the civil rights provisions of federal statutes pertaining to federally assisted and federally 

conducted programs.

10 In 1946, Congress passed the Hospital Survey and Construction Act, also known as the Hill-Burton Act, Pub. L. 

No. 79-725, 60 Stat. 1040 (1946) (codified as amended at 42 U.S.C. §§ 291–291o-1) (2004)). A later act, known as 
Staff Draft May 2004 79

 Provisions of the Omnibus Budget Reconciliation Act of 1981 relating to 

nondiscrimination in block grant programs.11

 Section 50412 and Section 50813 of the Rehabilitation Act (covering federally conducted 

programs) of 1973. 

 Title IX of the Education Amendments of 1972 as it applies to medical schools and 

teaching hospitals.14 

 The Age Discrimination Act of 197515 (OCR now coordinates governmentwide 

compliance with the act).16 

 Title II of the Americans with Disabilities Act of 1990,17 Section 1808(c) of the Small 

Business Job Protection Act of 1996,18 and the Privacy Rule under the Health Insurance 

Portability and Accountability Act of 1996.19 

 Executive Order 13166, “Improving Access to Services for Persons with Limited English 

Proficiency,” and Executive Order 13217, “Community-Based Alternatives for 

Individuals with Disabilities.” 

OCR also partners with customers, providers, and other HHS components to ensure 

equality in the delivery of services to HHS beneficiaries.20 Furthermore, it reviews HHS policies 

 the National Health Planning and Resources Development Act of 1974, Pub. L. No. 93-641, 88 Stat. 2225 (codified 

as amended at 42 U.S.C. §§ 300k–300n-5 (2004)), added Title XVI to the Public Health Service Act. This 

effectively amended the Hill-Burton program to encompass Titles VI and XVI of the Public Health Service Act. 

With this law, Congress sought to address a nationwide lack of adequate health care facilities, with a special focus 

on rural areas. The original act established federal grants for the construction of hospitals and other health care 

facilities. See USCCR, The Health Care Challenge, Vol. II, p. 53. 11 The statute requires nondiscrimination on the basis of race, color, national origin, disability, age, sex, and/or 

religion in health care and block grant programs. Pub. L. No. 97-35, 95 Stat. 357 (codified as amended in scattered 

sections of 5, 7, 10, 12, 15, 19, 20, 22, 23, 24, 25, 29, 31, 33, 35, 36, 38, 42, 45, 46, 47, 49, 50 U.S.C. (2004); Pub. 

L. No. 97-35, 95 Stat. 463 (codified as amended at 20 U.S.C. §§ 7301–7373 (2004). See also USCCR, The Health 

Care Challenge, Vol. II, p. 17. 

12 29 U.S.C. § 794 (2004). 

13 Rehabilitation Act of 1973, Pub. L. No. 93-112, § 508 (codified as amended at 29 U.S.C. § 794d (2004)). 

14 20 U.S.C. § 1681 (2004). 

15 Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621–634 (2004)). 

16 HHS Interrogatory, p. 2. 

17 42 U.S.C. §§ 12101–12213 (2004). 

18 Pub. L. No. 104-188, § 1808 (codified at 42 U.S.C. §§ 671(a) and 674) (2004)). 

19 Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 29 U.S.C. (2004)). The Privacy 

Rule establishes, for the first time, a set of national standards for the protection of health information. It provides 

patients with access to their medical records and more control over how their personal health information is used 

and disclosed. It provides a uniform, federal privacy protections for consumers. The final rule covers health plans, 

health care clearinghouses, and providers who conduct financial and administrative transactions. Most health 

insurers, pharmacies, doctors and other health care providers are required to comply with the federal standards 

beginning in April 2003. This review focuses on OCR’s civil rights activities excluding implementation of the 

Privacy Rule. See HHS Interrogatory, p. 2. 20 HHS Interrogatory, p. 1. 
Staff Draft May 2004 80

and practices to ensure that they do not have potential discriminatory effects on women, 

minorities, individuals with disabilities, and others protected by federal civil rights laws.21

Priority of Civil Rights 

Organizationally, OCR is in the Office of the Secretary, and the director reports to the 

Secretary through the deputy secretary. The director is the special assistant for civil rights and 

principal advisor to the Secretary on civil rights matters. The director meets twice weekly with 

the Secretary and executive staff, and may confer with the former on civil rights initiatives and 

projects at anytime.22 

OCR’s headquarters structure has been reorganized once between 1996 and 2000. In 

1996, OCR headquarters included the Office of Management Planning and Evaluation, as well as 

the Office of Program Operations and the 10 regional offices that reported to it.23 Headquarters 

staff provided policy guidance and operational direction to OCR’s regional offices while regional 

staff conducted complaint investigations and pre-award and post-award reviews. Overall, the 

Commission found the organizational structure adequate for Title VI enforcement.24 However, it 

recommended that OCR (1) develop regulations for Title VI enforcement; (2) hire its own 

attorneys to provide immediate legal guidance and assistance; and (3) establish a policy and 

planning unit to provide overall guidance to the regional and operating staff to enforce Title VI.25

By 1999, OCR headquarters had reorganized into five components, each with specialized 

functions and numerous divisions or units, including these key components (see figure 4.1): 

 The Policy and Special Projects Staff, which developed and interpreted civil rights policy 

and guidance and monitored civil rights issues; reviewed and interpreted regulations, 

policies, and legislative proposals for civil rights sufficiency; developed publications to 

provide outreach and technical assistance; and maintained a compendium of OCR’s Title 

VI documents. 

 The Office of Management Planning and Evaluation, which served as the principal 

advisor in management policy, budget formulation, and automated data processing 

systems in OCR headquarters and regional offices. The office had three divisions, 

including the Quality Assurance and Internal Control Division, which developed and 

conducted quality assurance activities. 

 The Office of Program Operations, which managed OCR’s compliance activities, 

including complaint investigations, voluntary compliance, and outreach activities. It was 

the principal advisor to the director on enforcement, and supervised OCR’s 10 regional 

offices.

 

21 USCCR, The Health Care Challenge, Vol. II, p. 18. 22 HHS Interrogatory, p. 4. 

23 The 10 regional offices are in Boston, MA, New York, NY, Philadelphia, PA, Atlanta, GA, Chicago, IL, Dallas, 

TX, Kansas City, MO, Denver, CO, San Francisco, CA, and Seattle, WA. The location of the regional offices 

remains the same. 

24 USCCR, Federal Title VI Enforcement, pp. 219–20. 25 Ibid., p. 238. 
Staff Draft May 2004 81

In each region an Office of the Regional Manager developed an enforcement and 

voluntary compliance program to carry out civil rights enforcement. The regional offices 

received and investigated discrimination complaints; conducted compliance reviews; coordinated 

voluntary compliance activities; and provided technical assistance and outreach to funding 

recipients, beneficiaries, and organizations. At the time, approximately three-quarters of OCR 

staff were in the regions.26 

FIGURE 4.1 

HHS/OCR Organizational Structure, 1998 

Source: U.S. Department of Health and Human Services, OCR Organization Chart as reprinted in U.S. Commission on 

Civil Rights, The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality—

Vol. II: The Role of Federal Civil Rights Enforcement Efforts, September 1999, p. 20. 

Many of the deficiencies in enforcement were caused by the large, complicated structure.

For example, communication between headquarters and regional offices was “slow, inadequate, 

and unresponsive” and headquarters staff lacked sufficient knowledge about enforcement to 

assist investigators. The Commission recommended headquarters become more involved with 

 

26 USCCR, The Health Care Challenge, Vol. II, pp. 19–20. 

Office of Program 

Operations

Office of 

the Director

Policy and Special 

Projects Staff

Associate General 

Counsel Civil Rights

Executive Secretariat

Office of Management 

Planning and 

Evaluation

Regional Offices Investigations Division

Program Development 

and Training Division

Voluntary Compliance 

and Outreach Division

Budget and 

Administration 

Services Division

Management 

Information and 

Analysis Division

Quality Assurance and 

Internal Control 

Division
Staff Draft May 2004 82

daily regional functions and provide extra oversight and guidance. Moreover, it said that OCR 

headquarters should hire experienced enforcement staff. Further, despite its 1996 

recommendation, in 1999, OCR did not have its own legal staff. Instead, OGC provided to OCR 

guidance and interpretation of legal matters on enforcement. This was accomplished through 

OGC’s Civil Rights Division, which had attorneys assigned to OCR. OGC supervised the 

attorneys, but their salaries came from the OCR budget. The Commission also found attorney 

responsibilities and authority unclear. It recommended that the Secretary define attorney 

responsibilities to advance OCR’s mission and give supervisory authority to the OCR director. 

All in all, the Commission found the 1999 OCR organizational structure too large and complex. 

Many functions were not implemented and there was little indication that resources were used 

effectively. Moreover, few policy guidance documents were issued between the Commission’s 

1996 and 1999 reviews, outdated documents and directives abounded, and few publications had 

been produced The Commission recommended that OCR streamline its headquarters 

organization and operations and establish a policy and planning unit.27 

OCR realigned headquarters operations in November 2000, establishing multifunctional 

units and consolidating functions.28 It hired five nonsupervisory senior policy analysts 

experienced in enforcing Title VI, the Americans with Disabilities Act, and Section 504 of the 

Rehabilitation Act. OCR also consolidated 20 management positions, reducing the number to its 

present level, six (see figure 4.2).29

FIGURE 4.2 

HHS/OCR Organizational Structure, 2003

 Source: HHS Interrogatory, “2003 Organizational Chart,” p. 3. 

 

27 Ibid., pp. 284–87. 

28 “Office for Civil Rights; Statement of Organization Functions and Delegations of Authority,” 65 FR 19379 (Apr. 

11, 2000). The Federal Register notice describes the changes in OCR’s structure and functions. OCR realigned the 

Office of Management Planning’s functions into the new Resource Management Division; incorporated the Office 

of Program Operations’ functions into the new Program, Policy and Training Division; and reorganized the 

Voluntary Compliance and Outreach Division, which was part of the Office of Program Operations, into a separate 

unit. 

29 HHS Interrogatory, p. 3. 

Voluntary Compliance 

and Outreach Division

Regional Offices 

Regions I-X

Program, Policy and 

Training Division

Office of General 

Counsel - Civil Rights

Office of 

the Director

Office of 

the Deputy Director

Resource 

Management Division
Staff Draft May 2004 83

The OCR director is still responsible for overall leadership and operations in civil rights 

enforcement. The deputy director, on the other hand, coordinates daily headquarters operations, 

namely, overseeing program operations, policy development, and administrative, budget and 

human resources activities. In addition to OCR’s 10 regional offices, three units now report to 

the deputy director: the Program, Policy and Training Division; the Voluntary Compliance and 

Outreach Division; and the Resource Management Division.30 

 The Program, Policy and Training Division develops civil rights–related policy and 

provides overall guidance to headquarters and regional staff on civil rights problems. It 

develops policy statements on legal issues and orders affecting minorities, women, and 

people with disabilities. The division also plans and coordinates OCR’s civil rights 

program initiatives; assesses results of OCR’s compliance activities; conducts policy and 

HHS program-related research; advises OCR staff on case development and quality; 

assists in developing negotiation and enforcement strategies; identifies training needs and 

designs training programs for OCR staff; develops civil rights surveys; and reviews 

operating divisions’ regulations, policies and other activities before departmental 

clearance. 

 The Voluntary Compliance and Outreach Division conducts pre-award reviews; provides 

guidance and assistance to OCR field offices to ensure uniform implementation of preaward policies and procedures; maintains civil rights assurance forms; and provides 

technical assistance and other services to operating divisions, recipients, national 

advocacy groups, beneficiaries, and other federal departments. 

 The Resource Management Division implements OCR’s administrative, financial, 

information resource management, data collection and personnel functions.31

OCR also reorganized the regional structure. The 10 regional managers now report to the 

deputy director. The regional offices have a deputy regional manager to oversee operations, and 

an attorney from OGC’s regional staff. In addition to the regional offices, there are two satellite 

(field) offices. The field offices provide technical assistance and education to recipients in their 

area, and conduct complaint investigations and compliance reviews. This regional structure 

provides (1) a direct line to OCR management; (2) managerial oversight of regional operations; 

and (3) direct assistance in areas where there are a large number of recipients and diversity in 

beneficiaries.32

OGC’s Civil Rights Division still advises and assists OCR in interpreting and applying 

nondiscrimination laws and regulations. Attorney responsibilities, however, are clear: (1) 

preparing cases for administrative enforcement proceedings and referring cases to DOJ for 

enforcement; (2) assisting DOJ in litigating court cases involving civil rights issues and health 

and human services programs; (3) reviewing or assisting in developing civil rights and privacy 

regulations, policy interpretations, and guidelines; (4) issuing legal opinions at OCR’s request; 

and (5) providing legal guidance in applying the Privacy Act, the Freedom of Information Act, 

 

30 Ibid., pp. 4–5. 

31 Ibid., pp. 5–7. 

32 Ibid., pp. 3, 6–7. 
Staff Draft May 2004 84

and other statues and regulations with which OCR must comply. OGC still supervises the 19 

attorneys. OCR maintains that the relationship between OGC and OCR is adequate for 

enforcement.33

Among this section’s key points are: 

 OCR reduced and consolidated management positions. 

 OCR streamlined headquarters and regional organizational structures. 

 OCR reorganized its regional structure and created field offices to improve enforcement 

in some areas. 

 OCR hired staff at headquarters with enforcement experience. 

Resources—Funding and Staffing 

In the Commission’s 1996 and 1999 reviews, OCR’s Title VI resources decreased while 

civil rights responsibilities increased.34 However, in 1999 OCR did not provide justification to 

increase its enforcement budget or a detailed plan for how additional resources would be 

expended.35 The Commission recommended that OCR show justification for more resources, 

how additional resources would be expended, and how OCR’s enforcement would improve with 

more resources.36 

OCR now prepares a detailed budget plan that outlines the resource allocation for civil 

rights enforcement. The budget plan includes an analysis of current workload, projected 

workload and staff time for specific types of compliance activities, and issues anticipated during 

the budget year.37 It indicates where additional resources are needed and how they would be used 

to improve enforcement. The Commission also recommended that HHS establish a reporting 

system that monitors and tracks resources and expenditures for each type of civil rights 

enforcement activity, including investigations, compliance reviews, technical assistance, and 

outreach.38 The Commission further proposed that OCR develop a “codification system” to 

approximate the time and resources devoted to each civil rights law that it enforced. Such a 

system would justify OCR’s budget and staffing requests.39 

 

33 Ibid., p. 6. 

34 USCCR, Federal Title VI Enforcement, p. 240. The 1996 review reported HHS’ civil rights resources from 1981 

to 1993. OCR’s budget only increased from $19.8 million in 1981 to $22.2 million in 1993. After correcting for 

inflation, OCR’s budget fell by 26 percent between 1981 and 1993. In addition, OCR staff declined from 524 to 309 

during the period. Federal Title VI Enforcement, p. 222. USCCR, The Health Care Challenge, Vol. II, p. 42. In the 

1999 review, factoring in inflation, OCR reported that its FY 1999 budget of $20.6 million was approximately 65 

percent of the 1981 budget of $19.8 million. 

35 USCCR, The Health Care Challenge, Vol. II, p. 42. 36 Ibid., p. 292. 

37 HHS Interrogatory, pp. 9–10; HHS Interrogatory Document Request, Item 6. 

38 USCCR, Federal Title VI Enforcement, p. 240; USCCR, The Health Care Challenge, Vol. II, p. 293. 

39 USCCR, Federal Title VI Enforcement, p. 240. 
Staff Draft May 2004 85

OCR now reports resources (funding and staffing) by OCR component and activity, but 

not by statute.40 OCR implemented in November 2002 the Program Information Management 

System to upgrade and integrate its information and management capabilities. The new system 

serves as an electronic repository for technology that monitors and tracks expenditures by the 

type of activity. OCR states that in its final phase, the system will improve OCR’s ability to 

identify resources associated with specific compliance activities, including multiple authorities 

and issues.41 

OCR maintains comprehensive information on its resources, staffing, and enforcement 

activities from FY 1998 to FY 2003. Table 4.2 shows resources for components and activities, 

and staff assignments before and after the 2000 realignment. Some components were eliminated 

or their functions consolidated into new or other units or divisions after the realignment. 

The resources for FY 2000 through FY 2003 reflect expenditures and resource allocations 

for OCR’s current organizational structure. Table 4.2 shows OCR’s funding and staffing by 

component and activity from FY 2000 has increased overall, and that resources for compliance 

reviews increased. 

 

40 HHS Interrogatory Document Request, Oct. 15, 2003, Items 2, 4. 

41 HHS Interrogatory, pp. 8–9. 
Staff Draft May 2004 86

TABLE 4.2 

HHS/OCR Funding and Staffing by Component and Activity, 1998–2003 

(Staff and Funding—FY 1998–2002 Actual FTE and $ (in 000s)—FY 2003 Preliminary Estimates Only) 

FY 1998 FY 1999 FY 2000 FY 2001 FY 2002 FY 2003 FTE and $ by Activity/Office FTE $ FTE $ FTE $ FTE $ FTE $ FTE $ 

By Activity 

Compliance activities 179 $16,261 174 $17,060 179 $18,744 186 $22,926 209 $26,674 207 $27,899

Legal services 19 $1,726 19 $1,863 19 $1,990 18 $2,219 20 $2,553 20 $2,696

1 

Program management 18 $1,635 17 $1,667 17 $1,780 19 $2,342 16 $2,042 18 $2,426

TOTAL 216 $19,622 210 $20,590 215 $22,514 223 $27,487 246 $31,396 245 $33,021

By Specific Compliance Activity 

(see note 2) 

Complaint processing 74 $6,772 79 $7,746 74 $7,749 83 $9,172 90 $10,688 100 $13,477

Preventative compliance reviews 

and monitoring 81 $7,358 76 $7,452 60 $6,283 53 $5,857 48 $5,700 37 $4,986

Public, education, outreach and 

voluntary compliance 24 $2,180 19 $1,863 45 $4,712 45 $4,973 59 $7,007 37 $4,986

2 

Privacy of health information n/a n/a n/a n/a n/a $18,744 5 $2,924 12 $3,406 33 $4,450

TOTAL 179 $16,261 174 $17,060 179 186 $22,926 209 $26,801 207 $27,899

By Office (see note 3) 

Office of the Director and Deputy 

Director 14 $1,272 14 $1,373 9 $942 11 $1,356 15 $1,914 16 $2,156

Office of the General Counsel 9 $818 8 $784 8 $838 8 $986 9 $1,149 10 $1,348

Office of Management Planning and 

Evaluation (pre-FY 2001 

realignment) 

16 $1,453 15 $1,471 n/a n/a n/a n/a n/a n/a n/a n/a

Office of Program Operations (preFY 2001 realignment) 23 $2,089 23 $2,255 n/a n/a n/a n/a n/a n/a n/a n/a

Program, Policy and Training 

Division (post-FY 2001 realignment) n/a n/a n/a n/a 21 $2,199 19 $2,342 20 $2,553 19 $2,561

Resource Management Division 

(post-FY 2001 realignment) n/a n/a n/a n/a 14 $1,466 14 $1,726 12 $1,532 10 $1,348

Voluntary Compliance and 

Outreach Division (post-FY 2001 

realignment) 

n/a n/a n/a n/a 7 $733 8 $986 7 $893 7 $943

3 

Regional Offices 154 $13,990 150 $14,707 156 $16,336 163 $20,091 183 $23,356 183 $24,665

FTE & $ Actual ($ in 000s 

including Trust Funds) 216 $19,622 210 $20,590 215 $22,514 223 $27,487 246 $31,396 245 $33,021

 

FTE & $ Authorized ($ in 000s 

including Trust Funds) 242 $19,659 232 $20,618 225 $22,533 259 $27,983 269 $31,430 267 $33,038

1. FY 2000 authorized includes a net of $445,000 in funds transferred to OCR under the Secretary's 1 percent transfer authority (to cover 

costs associated with implementation of the Supreme Court’s June 1999 decision in the Olmstead case (most integrated setting for persons 

with disability). 

2. Civil Rights FTE and $ allocated on pro-rata basis consistent with Budget Authority by Activity and Detail of Full-Time Equivalent 

Employment (FTE) in Justification of Estimates for Appropriations Committees. 

3. OCR realigned headquarters operations effective November 27, 2000. Because the realignment was published during April 2000 (during 

FY 2000), staff allocation by office in FY 2000 was made comparable to FY 2001. 

4. n/a -The table shows OCR’s components before and after realignment. 

Sources: U.S. Department of Health and Human Services, “HHS Office for Civil Rights Funding and Staffing by Component and Activity FY 

1998–FY 2003”; U.S. Commission on Civil Rights Interrogatory Document Request Items 2, 3, and 5. 
Staff Draft May 2004 87

OCR’s FY 2004 budget is $33.9 million, 64.6 percent higher than in FY 1999,42 and 

supports 56 more FTEs. OCR states that its resources are sufficient to support both the new 

Privacy Rule responsibility and civil rights compliance without necessitating a shift in 

resources.43 

Among this section’s key points are: 

 OCR now prepares and submits a detailed budget plan that includes an analysis of current 

workload, projected workload, staff time for compliance activities, and issues anticipated 

during the budget year. 

 OCR now reports resources by component and activity. 

 OCR’s new electronic record-keeping system monitors and tracks expenditures by the 

type of activity. It is a repository for technology, program, financial, and resource 

planning. 

Planning 

OCR prepares numerous planning documents, many dating back to 1996 and 1999.44

Some plans are statutorily mandated, such as the Department of Justice’s annual Civil Rights 

Implementation Plan, while others are solely for internal use.45 For example, headquarters and 

regional staff prepare annual operating plans (AOPs), which combine goals in the strategic plan 

with other initiatives. In 1999, the plans generally overlapped in content, and the Commission 

recommended that OCR develop one, comprehensive civil rights enforcement plan.46 

OCR still does not have one, comprehensive civil rights enforcement plan. OCR 

continues to prepare all the earlier plans. Since 1999, OCR has produced two new plans, one to 

eliminate language barriers and the other to assist regions in their budgetary preparation process. 

OCR maintains that the earlier and new plans have a specific purpose or meet reporting 

requirements.47 

One of OCR’s statutorily mandated documents is the annual Civil Rights Implementation 

Plan (CRIP). DOJ requires all Title VI agencies to forecast and report on enforcement activities 

 

42 See HHS/OCR, “Civil Rights Funding and Staffing by Component and Activity, 1998–2003”; U.S. Department of 

Health and Human Services, Office for Civil Rights, 2004 Budget Data. 

43 HHS Interrogatory, p. 8. In FY 2003, OCR employed 244 FTEs. 

44 In its response to the Commission’s document request, OCR submitted six types of plans, including examples of a 

strategic plan, annual operating plans, annual performance plans, annual implementation plans, the language 

assistance plan, and the financial operating plan. See HHS Interrogatory Document Items 7–10. 45 For example, a strategic plan is required by law. The Annual Performance Plan is in accordance with the 

Government Performance and Results Act (GPRA) Pub. L. 103-62, 107 Stat. 285 (codified at 5 U.S.C. § 306, 31 

U.S.C. §§ 1115–1119 (1994)). Most agencies the Commission reviewed have responsibilities to ensure 

nondiscrimination in federally assisted programs as required under Title VI of the Civil Rights Act of 1964. See Pub. 

L. No. 88-352, 78 Stat. 252 (codified as amended at 42 U.S.C. §§ 2000d–2000d-(7) (2004)). 

46 USCCR, Federal Title VI Enforcement, p. 249; USCCR, The Health Care Challenge, Vol. II, pp. 31, 39, 289. 47 HHS Interrogatory, p. 10. See ibid., pp. 10–12, for a detailed description of each plan. 
Staff Draft May 2004 88

annually. Internally, OCR considers the CRIP its Annual Implementation Plan (AIP). The AIPs 

that the Commission examined in 1996 and 1999 summarized OCR’s Title VI work. The agency 

did not consider the AIP a planning document, as DOJ intended.48 As a result, OCR did not 

identify specific objectives or resources necessary to accomplish them, or OCR provide 

information sufficient to evaluate Title VI enforcement.49 

OCR has not revised its AIPs since 1999.50 It contends that AIPs serve as evaluation 

measures to the extent that they provide information about OCR’s enforcement activities.51 

Among this section’s key points are: 

 OCR prepares numerous planning documents, some of which are statutorily mandated, 

while others are solely for internal use. Since 1999, OCR has produced two new plans. 

 OCR has not revised its annual Civil Rights Implementation Plan since 1999. 

 OCR still does not have one, comprehensive civil rights enforcement plan. 

Policy Guidance 

In 1999, the Commission stated, “OCR’s failure to develop and use regulations and 

policies to implement civil rights laws has had a devastating effect on the agency’s ability to 

conduct thorough, comprehensive enforcement to ensure equal access to quality health care.”

Therefore, the Commission recommended that OCR assign staff to develop policy guidance or 

statements that address civil rights compliance, amendments to civil rights statutes, and revisions 

in civil rights regulations or policies.52 

Since then, OCR has issued one new regulation and eight new guidance documents.53

OCR disseminates the policy documents throughout the department and to recipients by posting 

to HHS’ Web site, by e-mail and mail, and during technical assistance meetings.54 

 

48 USCCR, The Health Care Challenge, Vol. II, pp. 39–40. In 1996, the Commission reviewed FY 1989 to 1993 

CRIPs and in 1999, reviewed FY 1996 to 1998 CRIPs. The studies found the same problems with all the CRIPs 

reviewed, even though the Commission made recommendations for improvement in the 1996 report. 

49 USCCR, Federal Title VI Enforcement, p. 249; USCCR, The Health Care Challenge, Vol. II, pp. 39, 289. 50 HHS Interrogatory, p. 15. OCR submitted FY 1998–2002 AIPs. See HHS Interrogatory Document Request, Item 

10. 

51 HHS Interrogatory, p. 15. 

52 USCCR, The Health Care Challenge, Vol. II, pp. 298–99. 

53 HHS Interrogatory, pp. 16–18; HHS Document Request Item 13. The regulation is the Health Insurance 

Portability and Accountability Act Standards for Privacy of Individually Identifiable Health Information, 67 Fed. 

Reg. 53,182 (2002) (codified at 45 C.F.R. pts. 160 and 164), which ensures a national floor of privacy protections 

for patient medical records and other health-related information. The eight guidance documents include (1) Civil 

Rights Laws and Welfare Reform—An Overview and Technical Assistance for Caseworkers on Civil Rights Laws 

and Welfare Reform (Aug. 27, 1999), which explains how federal civil rights laws apply to certain aspects of 

welfare reform and is designed to assist officials involved in welfare reform programs in identifying potential civil 

rights issues and avoiding discrimination; (2) Olmstead Letters to State Medicaid Directors (Jan. 14 and July 25, 

2000), which was issued jointly with the Centers for Medicare and Medicaid Services. It provides information on the 

Supreme Court decision, Olmstead v. L.C. 527 U.S. 581 (1999), and its impact on the administration of Medicaid 
Staff Draft May 2004 89

OCR also reviews other HHS components’ proposed civil rights regulations and policy 

initiatives. The Office of the Secretary establishes clearance timelines according to the subject’s 

sensitivity. Appropriate components review policy proposals within the timelines.55 

Title VI Regulations 

OCR reported in 1996 that its Title VI regulations had not been revised since 1980. In 

addition, HHS had not published any Title VI guidelines for its federally assisted programs, as 

DOJ required. The Commission recommended that HHS develop and issue Title VI guidelines 

regularly.56 In August 2003, OCR amended Title VI regulations.57 

 programs. The decision provides a legal framework for efforts to enable individuals with disabilities to live in the 

most integrated setting appropriate to their needs, and requires initiatives to develop more opportunities for these 

persons to have access to cost-effective community-based, rather than institutionalized, services; (3) Title VI of the 

Civil Rights Act of 1964: Policy Guidance on the Prohibition Against National Origin Discrimination Affecting 

Limited English Proficient Persons (Aug. 30, 2000), which assists recipients of HHS federal financial assistance in 

fulfilling their responsibilities to provide meaningful access to LEP individuals. A revised guidance was issued in 

August 2003; (4) Policy Guidance Regarding Inquiries into Citizenship, Immigration Status and Social Security 

Numbers in State Applications for Medicaid, State Children’s Health Insurance Program, Temporary Assistance for 

Needy Families (TANF) and Food Stamp Benefits (Sept. 21, 2000), which clarifies when information on these 

matters may or may not be requested; (5) Prohibition Against Discrimination on the Basis of Disability in the 

Administration of TANF (Temporary Assistance for Needy Families) (Jan. 19, 2001), which clarifies the obligations 

that Title II of the ADA and Section 504 impose on state and local government TANF agencies and on recipients of 

federal financial assistance from HHS involved in TANF activities; (6) Access to HHS-Funded Services for 

Immigrant Survivors of Domestic Violence (Jan. 21, 2000), which is a fact sheet that provides guidance to health and 

social service agencies and community-based organizations about specific requirements affecting access to HHS 

federally funded programs for battered immigrants and their children; (7) MEPA (Multi-Ethnic Placement 

Act/Section 1808 Internal Evaluation Instrument (July 10, 2003), which is designed to assist states and other entities 

involved in adoption and foster care and their compliance with the Multi-Ethnic Placement Act of 1994 and Section 

1808 of the Small Business Administration Job Protection Act of 1996, which also is useful in compliance with Title 

VI in this area; and (8) Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against 

National Origin Discrimination Affecting Limited English Proficient Persons (Aug. 8, 2003) is a revised guidance to 

the 2000 LEP guidance. This guidance clarifies existing legal requirements for LEP persons and factors recipients 

should consider in fulfilling their responsibilities to LEP persons. 

54 HHS Interrogatory, p. 16. 

55 Ibid., p. 4. 

56 USCCR, Federal Title VI Enforcement, pp. 240–41. 57 See Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin 

Discrimination Affecting Limited English Proficient Persons, 68 Fed. Reg. 47,311 (2003). Also in August 2003, 

HHS proposed to amend regulations implementing Title VI of the Civil Rights Act of 1964, Section 504 of the 

Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, and the Age Discrimination Act of 1975 

to conform with certain statutory amendments made by the Civil Rights Restoration Act of 1987. The principal 

proposed conforming change was to amend the regulations to add definitions of “program or activity” or “program” 

that correspond to the statutory definitions enacted under the Civil Rights Restoration Act of 1987. See Office for 

Civil Rights, Amending the Regulations Governing Nondiscrimination on the Basis of Race, Color, National Origin, 

Handicap, Sex, and Age to Conform to the Civil Rights Restoration Act of 1987, 65 Fed. Reg. 64,194 (2000) (to be 

codified at 45 C.F.R. pts. 80, 84, 86, 90, and 91). 
Staff Draft May 2004 90

Case Resolution Manual 

In 1996, an investigative procedures manual guided OCR’s operations. The manual 

contained procedures for Title VI complaint investigations, compliance reviews, and pre-award 

reviews; however, it did not include comprehensive Title VI enforcement instructions. The 

Commission recommended that OCR provide a manual with “step-by-step” instructions for 

implementing Title VI, from the application stage through compliance reviews.58 By 1999, OCR 

had replaced the investigative procedures manual with the case resolution manual. Some of the 

same deficiencies were in the new manual. For example, the manual was too brief and cursory to 

serve as a procedural guide for compliance reviews and complaint investigations. The 

Commission concluded that the case resolution manual was not sufficiently comprehensive as an 

enforcement guide. OCR responded at that time that it intended to improve the manual and that it 

had a goal of enhanced usability, particularly for investigative staff.59 

The Commission recommended that OCR revise the case resolution manual and model it 

after the Department of Justice’s guidance.60 It said that the manual should instruct investigative 

staff not only on what type of data it should collect, but also on the importance of data collection 

and use. The manual also needed to provide clearer instructions to recipients for implementing 

policy in an effective and nondiscriminatory manner.61 OCR has not revised the case resolution 

manual and continues to use it.62 

LEP Guidance 

In 1998, OCR issued an LEP guidance memorandum to its investigative staff, which 

addressed language assistance related to national origin. Overall, the guidance was informative, 

but lacking in characterizing the diversity of languages represented in the service population or 

the need to identify skilled interpreters.63 The guidance also did not have clear standards for what 

constitutes a violation of Title VI for failing to provide meaningful access within the health and 

human services systems. The Commission noted the absence of a concise denotation of “equal 

access to health care,” and concluded that without the definition, HHS could not enforce LEP 

patients’ civil rights.64 The Commission recommended that OCR develop LEP policy guidance 

 

58 USCCR, Federal Title VI Enforcement, p. 242. 

59 USCCR, The Health Challenge, Vol. II, pp. 156–57, 168–70. 

60 In September 1998, DOJ’s Coordination and Review Section released to civil rights enforcement agencies a 

detailed and comprehensive procedural guidance, in response to the requests from the agencies to prepare guidance 

on investigative techniques. It included sections on applicable legal theories, a description of the evidence required 

to complete investigations, methods for analyzing evidence, and detailed sections on preparing letters of finding and 

investigative reports. USCCR, The Health Care Challenge, Vol. II, p. 326. 

61 USCCR, The Health Care Challenge, Vol. II, p. 328. 62 HHS Interrogatory, p. 19; HHS Interrogatory Document Request Item 15. 

63 USCCR, The Health Care Challenge, Vol. II, p. 93. In Executive Order 13166, reprinted at 65 Fed. Reg. 50,119 

(2000), federal grant agencies are directed to issue guidance to their respective recipients of federal financial 

assistance on ensuring meaningful access to their programs and activities by persons with limited English 

proficiency (LEP). Executive Order 13166 further requires that agency guidance be consistent with the compliance 

standards set out in Department of Justice Policy Guidance issued contemporaneous with the executive order and 

published at 65 Fed. Reg. 50,123 (2000). 

64 USCCR, The Health Care Challenge, Vol. II, pp. 298–99. 
Staff Draft May 2004 91

that included (1) a definition of “equal access to health care”; (2) standards for interpreter 

certification; and (3) specific monitoring objectives.65 The Commission also recommended that 

OCR clarify terms such as “reasonable steps” and give specific examples as to what recipients 

could do to assist LEP persons. The Commission recommended that OCR issue the guidance as 

Title VI regulations. The Commission praised OCR, despite its shortcomings, for having 

produced LEP guidance and commended the document to other agencies to do the same.66 

In August 2000, President William Clinton issued Executive Order 13166, “Improving 

Access to Services for Persons with Limited English Proficiency.”67 The executive order requires 

all Title VI agencies to develop LEP guidance for recipients with strategies to improve LEP 

persons’ access to federally funded programs. OCR issued a revised LEP guidance in August 

2003.68 The guidance addresses some of the Commission’s earlier concerns; for example, it 

provides suggestions and examples on how to improve language access; recommends language 

sources for recipients to use; and includes information about oral interpretation and written 

translation.69 OCR has not issued the guidance as part of its Title VI regulations.70 

Among this section’s key points are: 

 Since 1999, OCR has issued two new regulations and eight new guidance documents. 

 OCR has amended its Title VI regulations. 

 OCR has not revised the case resolution manual. 

 OCR issued a final LEP guidance in 2003 that addresses the Commission’s earlier 

concerns. 

 

65 Ibid., p. 310. The Commission noted that it failed to include a discussion on how OCR would monitor recipients’ 

implementation of remedial plans or resolution agreements developed in settlement negotiations with OCR. 

66 USCCR, The Health Care Challenge, Vol. II, pp. 93, 309, 311. 

67 Executive Order 13,166, 65 Fed. Reg. 50,121 (Aug. 16, 2000). The purpose of the executive order is to improve 

access and eliminate language as a barrier to federally assisted and federally conducted programs and activities. 

Under the order, all federal agencies are required to prepare an LEP (or language access plan) and those agencies 

under Title VI are to prepare guidance to their recipients on improving access to their programs for LEP persons. 

For additional information on the executive order and its implementation by federal agencies, see U.S. Commission 

on Civil Rights, Eliminating Language Barriers to Federal Programs and Services, 2004. 

68 In August 2000, OCR issued an LEP guidance. See 65 Fed. Reg. 52,762 (2000). This original guidance was 

republished for additional comment on February 1, 2002, pursuant to a memorandum issued by the United States 

Department of Justice on October 26, 2001. See Fed. Reg. 4,968 (2002). See Title VI of the Civil Rights Act of 1964: 

Policy Guidance on the Prohibition Against National Origin Discrimination Affecting Limited English Proficient 

Persons. See 68 Fed. Reg. 47,311 (2003). The August 2003 guidance is a revision of the August 2000 guidance with 

additional information required by DOJ. See Guidance to Federal Financial Assistance Recipients Regarding Title 

VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (Aug. 8, 2003) 

in HHS Interrogatory Document Request, Item 13. 

69 HHS Interrogatory, pp. 19–20. 

70 Executive Order 13166 does not require the Title VI agencies to issue the guidance as final rule or as a part of the 

Title VI regulations. 
Staff Draft May 2004 92

Technical Assistance 

In 1996 and 1999, OCR did not provide structured, regularly scheduled technical 

assistance for HHS staff or recipients. The Commission therefore recommended that OCR 

provide regularly scheduled technical assistance programs. Moreover, OCR should inform 

regional offices, operating divisions, and state and local agencies about new and developing 

problems and case law, and provide step-by-step instructions on compliance procedures.71 The 

Commission also suggested that OCR assign headquarters staff to full-time education and 

outreach coordinator positions to monitor and coordinate technical assistance, and education and 

outreach activities.72 

OCR now provides regularly scheduled technical assistance for regions and components 

throughout the department. Some activities are conducted more than once a year, while other 

activities run for a few weeks. Technical assistance is offered through written documents and at 

conferences and meetings. Headquarters senior civil rights analysts discuss with regional staff 

such topics as racial and ethnic health disparities, meaningful access to programs and services, 

racial discrimination in adoption and foster care, and the special needs of persons with 

disabilities and limited-English proficiency. OCR also uses outside consultants to provide 

technical assistance and information to its staff. However, OCR technical assistance to operating 

divisions and recipients concerning civil rights developments, law, and policy is provided only as 

needed. Finally, OCR assigns staff to coordinate activities.73 

Among this section’s key points are: 

 OCR now provides technical assistance and information on a wide range of civil rights 

topics to OCR staff, operating divisions, state and local agencies, and recipients. 

 OCR also uses outside consultants to provide technical assistance and information to its 

staff. 

Education and Outreach 

In previous reviews, the Commission found that OCR did not regularly conduct Title VI 

community outreach or public education.74 OCR did not use mechanisms such as the media to 

inform the public about nondiscrimination policies in health care. It therefore recommended that 

OCR actively and regularly inform actual and potential participants of their civil rights and how 

 

71 USCCR, Federal Title VI Enforcement, p. 246. 72 USCCR, The Health Care Challenge, Vol. II, pp. 350–52. In 1999, OCR’s Voluntary Compliance and Outreach 

Division was responsible for coordinating technical assistance, and education and outreach activities. However, it 

consisted of only two staff who could not account for the specific amount of time spent on these activities, which 

involved mostly evaluating plans and status reports from the regions. There was no liaison person at headquarters 

assigned to the regions, and headquarters staff admitted there was very little communication between the regions and 

headquarters about these matters and headquarters staff were not fully aware of the outreach activities being 

conducted. Ibid., pp. 351–52. 

73 HHS Interrogatory, pp. 22–25. 

74 USCCR, Federal Title VI Enforcement, p. 245. 
Staff Draft May 2004 93

to file complaints.75 The Commission further recommended that OCR conduct a media campaign 

to emphasize the importance of quality health care and nondiscrimination in health services. In 

addition, it recommended that OCR reach out to civil rights and community organizations to 

assist in education and outreach.76

OCR used fact sheets, available in English, Spanish and some Asian languages, for 

education and outreach, but these had not been updated since the early 1990s. Besides, the fact 

sheets did not describe OCR’s role and civil rights laws, or provide service information. OCR 

also had not prepared any other education and outreach publications. OCR attributed the paucity 

of outreach documents to a lack of resources. The Commission recommended that OCR assess 

whether benefits of allocating resources to education and outreach justified the sacrifice of 

resources in other areas.77 

OCR now provides education and outreach to the public and funding recipients on health 

care services, civil rights, and Title VI.78 OCR has 16 fact sheets about the civil rights laws that it 

enforces. All have been updated since 1999 and are translated into seven languages: Spanish, 

Chinese, Korean, Vietnamese, Polish, Russian, and Tagalog. It disseminates health care 

information to community and advocacy groups, recipients and providers, and to the general 

public through HHS’ Web site. OCR’s standardized Discrimination Complaint Form can be 

downloaded from the Web site and filed electronically. In addition, OCR partners with other 

federal agencies, including DOJ and the Department of Agriculture, to coordinate education and 

outreach activities on related issues. It collaborates with operating divisions, and universities and 

state agencies to pool resources to support education and outreach activities.79 

Among this section’s key points are: 

 OCR provides education and outreach on Title VI. 

 OCR now has 16 updated fact sheets in several languages about the civil rights laws that 

it enforces. 

 OCR uses the HHS Web site to widely disseminate health care information. The 

standardized Discrimination Complaint Form on HHS’ Web site can be downloaded and 

filed electronically. 

 OCR collaborates internally and externally to pool resources to support education and 

outreach activities. 

 

75 Ibid., p. 346. 76 USCCR, The Health Care Challenge, Vol. II, pp. 278–79. 77 Ibid., pp. 350–52. 78 HHS Interrogatory, pp. 27–28. OCR reports that in FY 2003, 44 percent of the approximately 300 outreach, 

educational, and technical assistance activities involved Title VI issues (LEP, racial and ethnic health disparities, 

immigrant access, and racial discrimination in adoption and foster care). Education and outreach activities include 

OCR staff speaking at or participating in briefings, conferences and workshops; developing videos; making 

presentations; and developing materials on its Web site on different civil rights issues. 

79 HHS Interrogatory, pp. 27–30. 
Staff Draft May 2004 94

Complaint Processing 

In 1996, HHS’ enforcement activities were complaint driven.80 OCR reported that 

complaint processing consumed the majority of its resources and made up 60 percent of its 

workload. Nevertheless, the complaint backlog continued to increase. To rectify the problem, 

OCR instituted a “high priority” caseload program, which concentrated resources on cases most 

likely to result in discrimination findings.81 The Commission recommended that OCR initiate 

more strategies to eliminate backlog, including (1) an early resolution system in which cases 

could be resolved before investigation; (2) use of operating divisions for daily compliance 

responsibilities to increase the number of on-site reviews and investigations; and (3) use of preaward reviews as a proactive strategy to eliminate discrimination before a complaint is filed, 

which would increase the number of applicants undergoing pre-award reviews.82 

OCR now implements an Early Complaint Resolution process, in which parties have the 

opportunity to resolve allegations at initial stages. If regional staff determine that this process is 

appropriate, and the charging parties and the covered entity are willing, staff will facilitate 

agreements between the parties. OCR does not sign, endorse, or formally monitor agreements 

between parties, but if the covered entity fails to comply, the charging party may refile the 

original complaint.83 However, OCR did not address the Commission’s other recommendations. 

Thus, operating divisions do not assist in complaint processing and pre-award reviews do not 

serve as a strategy to increase the number of applicants reviewed. 

Among this section’s key points are: 

 OCR implements an early complaint processing procedure in which parties have the 

opportunity to resolve allegations at initial stages of the complaint. 

 OCR has not established any other procedures or strategies to improve complaint 

processing. 

Compliance Reviews 

Pre-Award Reviews 

HHS provides financial assistance to 230,000 entities; however, it only reviews new 

Medicare applicants and Medicare recipients that reapply for federal financial assistance because 

of a name or ownership change before making awards.84 The pre-award reviews apply to 

 

80 USCCR, The Health Care Challenge, Vol. II, p. 229. Between 1985 and 1992, OCR’s complaint inventory rose 

from approximately 400 complaints to nearly 1,300 complaints. From FY 1986 through FY 1993, OCR received 

1,589 and 2,094 complaints, respectively. Approximately one-third of the inventory involved Title VI complaints. 

81 USCCR, Federal Title VI Enforcement, p. 245. 82 Ibid., pp. 239, 245. In 1996, none of the operating divisions had staff assigned to Title VI enforcement. Only one, 

the Centers for Medicare and Medicaid, had an MOU with OCR that outlined specific responsibilities. 

83 HHS Interrogatory, p. 32. 

84 Ibid., p. 35. Medicare is a national health insurance program sponsored by the government. It is divided into two 

parts: “Part A,” which pays benefits for hospital and skilled nursing home care, and “Part B,” which helps pay for 

doctor bills and outpatient services. See “Medicare: Parts A and B,” <http//:www.bristolhospital.org/bh_hil/ 

AGIN3390.htm> (last accessed May 9, 2004). In the 1960s, Medicare was the largest federal health care program. 
Staff Draft May 2004 95

Medicare institutions such as nursing homes, home health agencies, hospitals and hospices, and 

not to applicants who are doctors or other health professionals.85

In its 1996 and 1999 reviews, the Commission concluded that HHS lacked a 

comprehensive pre-award process that included all program applicants. It recommended that 

OCR develop strategies that would increase the number of applicants reviewed, include on-site 

reviews, and develop a data collection system to collect useful information about applicant 

administration of programs.86 The Commission suggested OCR institute desk-audit reviews of 

non-Medicare funding recipients and use software applications to perform analysis of statistical 

information.87 In 1999, the Commission also recommended that qualified operating divisions 

perform pre-award desk-audit reviews.88 

OCR did not respond to the Commission’s recommendations. In regard to pre-award 

reviews, OCR has not increased the pool of applicants reviewed or included on-site visits in the 

process. Table 4.3 shows 18,531 pre-award reviews since FY 1998, and the number decreased 

from FY 1998 to 2002. OCR maintains that it cannot control the number of pre-award reviews it 

conducts since it is based on the number of Medicare recipients that the Centers for Medicare 

 The Secretary of HEW (now HHS) devised the Medicare pre-award review to combat racial segregation and other 

discrimination in health care services. Medicare remains the largest HHS health care program and the nation’s 

largest health care insurer with 900 million claims a year. OCR states that the unique structure of the Medicare 

program lends itself more to a pre-award review, while the structures of other HHS-funded programs are more 

appropriate for post-award reviews. OCR explains that Medicare providers are direct recipients of federal financial 

assistance and each year thousands of new providers seek certification to participate in the program. OCR believes 

that, through pre-award reviews of Medicare applicants, it is reviewing the highest number of new recipients for 

nondiscrimination. In other HHS programs such as Medicaid, federal funding goes to a state agency rather than 

directly to the provider, and the state applicant pool is relatively static. State Medicaid agencies can and do change 

their plans for participation or submit waivers under Medicaid authority. When appropriate, OCR does review these 

submissions for civil rights implications. Shelley Jackson, senior civil rights analyst, Office for Civil Rights, U.S. 

Department of Health and Human Services, “Additional Information on the Office for Civil Rights Medicare PreGrant Reviews,” e-mail, Feb. 20, 2004. 

85 OCR explains that 230,000 is the number of all recipients, not the number of entities required to apply or reapply 

for participation in the Medicare program. OCR estimates that approximately 50,000 institutional Medicare 

recipients have undergone pre-award reviews. OCR further explains that other Medicare participants, including 

doctors and other health professionals, do not undergo pre-award reviews if they participate in the Medicare “Part 

B” program, which is the Medicare medical insurance program that helps pay for doctors’ services and other care. 

OCR states that HHS’ Title VI regulations do not include Medicare “Part B” as a federally funded assisted program. 

See Robinsue Frohbese, principal deputy director, Office for Civil Rights, U.S. Department of Health and Human 

Services, letter to Les Jin, staff director, U.S. Commission on Civil Rights, Re: Ten-Year Check-Up: Have Agencies 

Responded to Civil Rights Recommendations? (Chapter on U.S. Department of Health and Human Services, May 

17, 2004; U.S. Department of Health and Human Services, HHS Office for Civil Rights Suggested Revisions to 

USCCR Draft, Ten-Year Check-Up Report (HHS Chapter) (hereafter cited as HHS letter and Suggested Revisions). 

86 USCCR, Federal Title VI Enforcement, pp. 242–43; USCCR, The Health Care Challenge, Vol. II, p. 330. 

87 USCCR, The Health Care Challenge, Vol. II, p. 331. 88 Pre-award desk audits include review of signed assurances as part of the pre-award package. In addition, OCR 

pre-award reviews do not involve an on-site visit to a facility. HHS Interrogatory, p. 36. In 1999, some operating 

divisions had civil rights staff performing external civil rights enforcement. In 2003, six operating divisions had 

MOUs with OCR. HHS Interrogatory, p. 44. 
Staff Draft May 2004 96

and Medicaid refer each year.89 OCR believes that strategies to increase the number of pre-award 

reviews are unnecessary since it is reaching the largest number of new applicants through its preaward review policy.90 

TABLE 4.3 

HHS/OCR Pre-Award Reviews, 1998–2002 

Fiscal 

year 

Pre-award 

review 

workload 

On-site 

reviews

Completed pre-award 

reviews involving 

desk audits only

Reviews resulting 

in noncompliance 

1998 4,035 0 3,028 156 

1999 3,702 0 2,582 109 

2000 3,426 0 2,174 140 

2001 3,628 0 2,268 138 

2002 3,740 0 3,740 11 

Sources: HHS Interrogatory Document Request, Annual Civil Rights Implementation Plans, FY 1998–2002, 

Item 10; HHS Interrogatory, p. 37; Shelley Jackson, senior civil rights analyst, Office for Civil Rights, U.S. 

Department of Health and Human Services, e-mail, Dec. 18, 2003.

OCR has not improved data collection on applicant beneficiaries, including collecting 

information on beneficiaries that recipients reject. Some regions collect demographic 

information on the program’s affected community.91 

Post-Award Reviews 

OCR uses post-award reviews to identify deficiencies in program administration, 

allegations of barriers to program participation, and recipients’ need for education and technical 

assistance.92 In 1996, OCR conducted a small number of post-award reviews, including deskaudit and on-site visits, relative to the number of recipients.93 OCR attributed the small number 

of post-award reviews to a lack of resources. In light of this, the Commission recommended that 

OCR use desk-audit reviews, although not exclusively, to ensure Title VI compliance. 

The number of post-award reviews has continuously declined, from 270 in FY 1999 to 

136 in FY 2002. Data on on-site reviews suggested that OCR is not simply relying on desk-audit 

reviews. On-site reviews initially made up less than 20 percent of all reviews, but increased in 

FY 2000 to 26.7 percent, and to a height of 57.3 percent in FY 2001, then decreased to 42.6 

 

89 In 2004, the Commission reiterates its earlier concern that the number of applicants that undergo pre-award 

reviews is far below the number of recipients (currently, 230,000) that receive HHS federal financial assistance. 

OCR believes that comparing the number of recipients with the number of applicants is inappropriate. See HHS 

Letter and Suggested Revisions. To clarify the issue, the Commission requested the total number of applicants from 

FY 1998 to 2002, in order to compare the number of applicants with the number of those who underwent pre-award 

reviews. OCR informed the Commission that the information is not available. Shelley Jackson, senior civil rights 

analyst, Office for Civil Rights, U.S. Department of Health and Human Services, telephone interview, May 18, 

2004. 

90 HHS Interrogatory, p. 35. 

91 Ibid., p. 36. 

92 Ibid., p. 37. 

93 USCCR, Federal Title VI Enforcement, p. 228. 
Staff Draft May 2004 97

percent in FY 2003. The trend in percentage of reviews finding noncompliance is erratic, with 

figures notably high in FY 1998, FY 2001, and FY 2002 (see table 4.4). 

TABLE 4.4 

HHS/OCR Post-Award Reviews, 1998–2002

Fiscal 

year 

Total 

reviews 

completed 

On-site 

 reviews 

Desk 

audits 

only

Percent 

on-site 

reviews

Reviews 

resulting in 

noncompliance 

Percent 

noncompliance

1998 228 39 189 17.1% 58 25.4%

1999 270 44 226 16.3% 37 13.7%

2000 176 47 129 26.7% 23 13.1%

2001 164 94 70 57.3% 86 52.4%

2002 136 58 78 42.6% 27 19.9%

Source: Shelley Jackson, senior civil rights analyst, Office for Civil Rights, U.S. Department of Health and Human Services, email, Mar. 1, 2004. 

Limited-Scope Reviews and Full-Scope Reviews 

Full-scope reviews generally cover all protected classifications under a statute. Limitedscope reviews, implemented in FY 1993, focus on one problem that is usually applicable to a 

single statute.94 With limited-scope reviews, OCR planned to increase the number of post-award 

reviews, rationalizing that more reviews could be quickly conducted with fewer resources. 

Limited-scope reviews usually do not require on-site visits and omit important classifications;95

however, some have resulted in investigations of other issues and generated additional cases.96 

In 1999, the majority of OCR’s post-award reviews were limited-scope desk audits.97 For 

example, in FY 1997, OCR conducted 253 limited-scope but only 33 full-scope reviews, all of 

which were desk audits. The Commission concluded that OCR overrelied on limited-scope 

reviews in the post-award process. It recommended that OCR employ an approach that addressed 

a broad range of issues, covered at least one statute thoroughly, and included on-site visits. The 

Commission also recommended that OCR set goals for a minimum number of full-scope reviews 

conducted each year.98 

OCR acknowledges that a post-award review usually requires a thorough investigation of 

more than one issue and on-site visits. OCR indicates that it now conducts limited- and fullscope reviews.99 Table 4.5 shows the number of limited-scope and full-scope reviews conducted 

 

94 In recent years, the limited-scope review has focused on limited English proficiency, which addresses national 

origin discrimination but not race and color, the other two protected classifications under Title VI. The Commission 

concluded that OCR’s “reliance” on limited-scope reviews, and its haphazard selection of sites for on-site reviews, 

was a weakness in its overall enforcement programs. USCCR, The Health Care Challenge, Vol. II, pp. 163, 167. 

95 USCCR, The Health Care Challenge, Vol. II, pp. 163, 167, 333. 

96 Shelley Jackson, senior civil rights analyst, Office for Civil Rights, U.S. Department of Health and Human 

Services, telephone interview, Dec. 19, 2003. 

97 USCCR, The Health Care Challenge, Vol. II, p. 163. 

98 Ibid., p. 333. 

99 HHS Interrogatory, p. 35. 
Staff Draft May 2004 98

between FY 1998 and 2002. The data show that since FY 2000, the number of full-scope reviews 

has increased sizably. 

Finally, OCR does not set goals for the number of full-scope reviews it will conduct each 

year. However, it uses criteria, such as the number of complaints, to determine when it will 

conduct a limited- or full-scope review.100 

TABLE 4.5 

HHS/OCR Limited-Scope Reviews and Full-Scope Reviews, 1998–2002 

Fiscal 

year 

Limited-scope 

reviews 

Full-scope

 reviews Investigations Total 

1998 194 62 134 390 

1999 239 98 114 451 

2000 149 225 77 451 

2001 61 295 54 410 

2002 48 285 53 386 

Note: Investigations reflect those limited-scope reviews that resulted in new cases or different issues 

that had to be investigated. The total number of full- and limited-scope reviews reflect “initiated” postaward reviews that were not necessarily completed, and the “carried in” cases (usually referred to as 

the backlog). Thus, the total number of full- and limited-scope reviews is higher than the post-award 

reviews reported in table 4.4. Shelley Jackson, senior civil rights analyst, Office for Civil Rights, U.S. 

Department of Health and Human Services, telephone interview, Dec. 19, 2003. 

Source: HHS Interrogatory, p. 34.

 

Among the section’s key points are: 

 OCR did not implement the Commission’s recommendations on pre-award reviews. 

 OCR is employing on-site and desk-audit post-award compliance reviews. 

 OCR does not have annual goals for the number of full-scope reviews to be conducted. It 

has criteria for determining when it will conduct a limited- or full-scope review.

 Limited-scope reviews usually do not require on-site visits and omit important 

classifications; although some have resulted in investigations of other issues and 

generated additional cases. 

Staff Training 

In 1996 and 1999, OCR did not provide regularly scheduled, comprehensive civil rights 

training for its staff on such issues as investigative techniques. Instead, it only offered on-the-job 

training for new staff and annual seminars on civil rights developments.101 The Commission 

recommended that OCR inform civil rights staff throughout the department about enforcement 

and compliance procedures, and Title VI programs and policies, case law, and regulations.102 

 

100 Ibid. 

101 USCCR, Federal Title VI Enforcement, p. 247; USCCR, The Health Care Challenge, Vol. II, pp. 294–95. 102 USCCR, The Health Care Challenge, Vol. II, pp. 294–95. 
Staff Draft May 2004 99

OCR now has a formal civil rights training program for departmental staff that covers 

requirements and provisions of civil rights laws and regulations, and investigative techniques and 

procedures.103 The program is also designed to help operating division staff as they plan and 

implement programs.104 In addition, OCR’s headquarters and regional staff train HHS 

administrators, program and grants management staff, and EEO counselors. OCR uses an 

evaluation form to assess the effectiveness of training and to design future training efforts.105 

Among the section’s key points are: 

 OCR has a formal, ongoing program for training HHS staff on civil rights laws and 

regulations and investigative techniques and procedures. This program also helps 

operating division staff as they plan and implement programs. 

 OCR uses an evaluation form to evaluate the effectiveness of the training and to design 

future training efforts.

Coordination 

In 1999, a departmental Office of Minority Health and Office of Women’s Health, and 

some operating divisions developed and implemented initiatives to improve health care and 

eliminate disparities in programs and services for minorities and women.106 Little coordination, 

however, existed between OCR and these components.107 The Commission concluded that the 

minority and women initiatives could affect OCR’s work, and it recommended more interaction 

between OCR and components.108 The Commission further recommended that OCR coordinate 

departmentwide efforts to implement the minority and women’s initiatives. It also recommended 

that OCR form an interoffice working group to examine the relationship between civil rights 

enforcement and the minority and women’s initiatives.109 

OCR now coordinates activities with HHS components on initiatives that affect the health 

care of minorities and women. All departmental initiatives that affect minorities, women, and 

other protected groups are integrated into civil rights enforcement through outreach and other 

activities. For example, OCR reviewed the Office of Women’s Health fact sheet on battered 

female immigrants’ eligibility for HHS programs, as well as a FY 2002 department report to the 

President that discusses the role of women as caregivers to family members with disabilities. It 

also coordinates activities with other components, such as the Office of Disability, established in 

 

103 HHS Interrogatory, pp. 39–40. 

104 Since 1999, OCR’s Centers for Medicare and Medicaid Services (CMS) training program is provided to all CMS 

employees and is required of designated staff at all levels. Since 1999, 2,895 CMS staff, including 1,886 CMS 

headquarters staff and 1,099 CMS regional staff have received OCR’s training. HHS Interrogatory, pp. 39–40. 

105 HHS Interrogatory, p. 43. The quantitative score 1–5 with 5 the highest score provides feedback that allows OCR 

to analyze and document the quality of the training. To date, an average of the quantitative scores reveals a high 

rating for the training, with scores ranging between 4 to 5. Ibid., pp. 43–44. 

106 See USCCR, The Health Care Challenge, Vol. I, pp. 118–34. 107 Ibid., p. 212. 

108 Ibid., p. 134. 

109 Ibid., pp. 215–16. 
Staff Draft May 2004 100

2002, to address different services for disabled and elderly persons. In addition, OCR works 

closely with operating divisions on a variety of minority and women initiatives.110

Among this section’s key points are: 

 OCR coordinates activities with the Office of Minority Health and the Office of 

Women’s Health on women and minority health issues and with the Office of Disability 

on services for people with disabilities and the elderly. 

 OCR also collaborates with operating divisions on a variety of minority and women 

initiatives. 

Oversight and Quality Assurance 

Although there was a Quality Assurance and Internal Control Division in 1999, the 

Commission found that there had been no systematic, formal quality assurance reviews since 

1993.111 The Commission recommended that OCR conduct annual oversight reviews, quality 

assurance reviews, and other monitoring activities to evaluate civil rights performance. 

Quality assurance reviews are now a routine part of OCR’s enforcement program. OCR 

senior staff now assess the quality of case analysis and provide consultations and training for 

regional staff.112 The quality assurance process includes an assessment of performance 

indicators, including investigators’(1) delineation of the parties in a case; (2) analysis of 

allegations; (3) accuracy of statutory or regulatory basis and citations; (4) articulation of the 

elements in a case; (5) assessment of evidence collection and presentation; and (6) questions 

raised during the investigation.113

Among this section’s key points are: 

 OCR senior staff now conduct quality assurance reviews of regional staff performance 

when problems surface and provide consultations and training for them. 

 OCR has developed indicators to measure investigator effectiveness, but no numerical 

measures to assess enforcement performance or results. 

Data Collection and Analysis 

In the 1990s, OCR collected a paucity of racial and ethnic information. Most states and 

federal health agencies only made minimal efforts to collect health-related data on Asian 

 

110 HHS Interrogatory, pp. 46–51. The coordination activities range from technical assistance, to participation on 

working groups, to joint presentations at outside meetings and associations on particular issues. For examples of the 

coordination activities, see HHS Interrogatory, pp. 45–48. 

111 USCCR, The Health Care Challenge, Vol. II, p. 284. 112 HHS Interrogatory, pp. 51–52. OCR has integrated technical assistance into its quality assurance program. The 

focus of the program is on assisting investigators to reach effective conclusions based on facts and evidence in a 

case. 

113 HHS Interrogatory, p. 53. 
Staff Draft May 2004 101

Americans.114 Apart from fulfilling Hill-Burton Act requirements, OCR did not request racial 

and ethnic data from recipients until compliance reviews.115 The Commission recommended that 

OCR commence collecting demographic data routinely to determine minority communities’ 

access to quality health care.116 The Commission recommended that HHS collect and report 

public health data separately for Asian American and other subgroups.117 It suggested formal 

regulations that specify data elements, including: 

 The manner in which programs provide services. 

 The race, color, or national origin of the population eligible to be served. 

 Data on covered employment, including the use of bilingual employees to work with 

beneficiaries who do not speak English. 

 The location of existing or proposed facilities and information on whether the location 

will have the effect of denying access to any person on the basis of prohibited 

discrimination. 

 The race, color, and national origin of the members of any planning or advisory body that 

is an integral part of the program. 

 Requirements and procedures designed to guard against adverse impact on persons based 

on race, color, or national origin when relocation is involved.118

Today, OCR still does not conduct broad-based surveys or data collection, except to 

fulfill Hill-Burton Act requirements. OCR continues to collect racial and ethnic data from 

recipients only during compliance reviews and complaint investigations.119 For example, it will 

collect such data when compliance work involves or requires comparisons among Asian 

American and Pacific Islander and/or Hispanic subgroups;120 or to develop evidence and analyze 

 

114 USCCR, Asian Americans in the 1990s, p. 202. 115 Popular name for Hospital Survey and Construction Act, ch. 958, 60 Stat. 1040 (1946) (codified as amended at 

scattered sections of 42 U.S.C.A. and various sections of 26 U.S.C., 33 U.S.C., 46 U.S.C., and 49 U.S.C. (2004). In 

1996, OCR’s limited data collection and analysis efforts were restricted to the Community Services Assurance 

Report, by which OCR collected data under the Hill-Burton Act. This report requested recipients for information 

relevant to compliance with Title VI. It requested recipients to estimate the proportion of their program area 

composed of minorities. It did not require recipients to provide this information by race and ethnicity. Regional 

offices were provided with census data to determine whether each minority group is represented among the 

recipient’s patients in proportion to their representation in the relevant locality. However, the report did not ask 

recipients to report on services provided by race or ethnicity and cannot reveal whether members of different racial 

and ethnic groups are treated disparately. USCCR, Federal Title VI Enforcement, p. 248. 116 USCCR, Federal Title VI Enforcement, pp. 247–48. 117 USCCR, Asian Americans in the 1990s, p. 203. 

118 USCCR, The Health Care Challenge, Vol. II, p. 324. 

119 HHS Interrogatory, p. 56. 

120 OCR reports that HHS includes health data for groups such as Asian Americans in its health populations surveys. 

The collection of these data is funded by the operating divisions. HHS’ National Center for Health Statistics also has 

a leadership role in data collection. HHS Interrogatory, p. 55. 
Staff Draft May 2004 102

case elements. Similarly, it will collect health care and human services data during compliance 

reviews.121 

Among the section’s key points are: 

 OCR does not conduct broad-based surveys or data collection. 

 OCR continues to collect race and ethnic and health care and human services data during 

compliance reviews. 

Community Involvement 

OCR consulted beneficiaries, providers, advocacy organizations, and other customers 

when it developed its strategic plan. The Commission recommended, however, that OCR 

regularly solicit suggestions and comments from affected communities and recipients, 

particularly with respect to its Title VI enforcement.122 

OCR now has ongoing communication and relationships with civil rights organizations, 

advocacy and health industry groups, beneficiaries, providers, and other stakeholders to ensure 

their active participation in its programs.123 It consults with community organizations and 

advocacy groups when developing guidance and planning documents. For example, stakeholders 

and advocacy groups served as consultants in the development of OCR’s LEP guidance, offering 

insight and views on LEP problems.124 

Among this section’s key points are: 

 OCR has an ongoing relationship with various community organizations. 

 OCR consults stakeholders when developing guidance and planning documents. 

Delegation 

In 1996 and 1999, OCR reported that its enforcement resources were inadequate to carry 

out its mission. The Commission recommended that it should formally delegate some 

enforcement responsibilities to eligible operating divisions.125 It said that the Secretary should 

 

121 HHS Interrogatory, p. 56. 

122 USCCR, Federal Title VI Enforcement, p. 246; USCCR, The Health Care Challenge, Vol. II, p. 350. 123 Organizations include the Association of Retired Persons, the National Immigration Law Center, the National 

Council of La Raza, and disability and welfare advocates. HHS Interrogatory, pp. 57–58. 124 HHS Interrogatory, p. 61. 

125 USCCR, The Health Care Challenge, Vol. II, p. 293. The Commission suggested that until it received the 

resources needed to carry out its mission, regional staff could concentrate on-site compliance reviews, on-site 

complaint investigations, local education and outreach, and technical assistance. The Commission suggested that 

with proper guidance and oversight, the operating divisions could be delegated other enforcement duties such as preaward and post-award reviews, data collection and analysis, and reviewing and evaluating recipient self-assessments 

and assurances of nondiscrimination. 
Staff Draft May 2004 103

issue a directive supporting delegation of authority.126 However, the Commission noted that 

delegation should not take place without OCR leadership, guidance, instruction, monitoring, and 

oversight. The Commission recommended that OCR develop procedures for training and 

guidance, and oversight mechanisms to monitor the operating divisions’ enforcement. It also 

recommended that operating divisions have civil rights offices with staff experienced in 

enforcement.127 

The Secretary has not issued a directive stating that OCR share enforcement 

responsibilities with operating divisions, nor does OCR support such a directive. OCR believes 

that its organizational separation from the operating divisions allows promotion of civil rights 

compliance without potential conflicts or inconsistency. It is convinced that diffuse delegation 

would duplicate enforcement efforts. Moreover, it would have to use limited resources to train 

operating division staff to a level at which they could enforce effectively.128

Rather than use operating divisions to assist in civil rights enforcement, OCR shifts 

additional responsibilities to OCR headquarters staff. To illustrate, since 1999, OCR has 

transferred the majority of pre-award work from five regional offices to the Voluntary 

Compliance and Outreach Division in headquarters. Four full-time employees from other OCR 

components have been assigned to the division to carry out pre-award review functions. OCR 

maintains that this approach frees regional staff to perform other critical civil rights functions.129 

Among this section’s key points are: 

 The Secretary has not issued a directive stating that OCR share enforcement 

responsibilities with operating divisions.

 OCR does not support such a directive, believing that separation from the operating 

divisions allows it to conduct civil rights compliance without potential conflicts or 

inconsistency.

Conclusion 

The Commission examined numerous HHS components and made more than 200 

recommendations during the past decade. It cited problems and deficiencies, and suggested ways 

for improvement. Many of OCR’s problems were caused by a large, complicated organizational 

structure with too many offices, units, and divisions. Many of the responsibilities overlapped or 

were neglected. With all of its offices, there was no planning or policy development unit; it 

assigned staff to perform quality assurance reviews, however, the division was dysfunctional; 

and it employed staff at headquarters who did not understand enforcement or the regional 

offices’ responsibilities. 

 

126 USCCR, The Health Care Challenge, Vol. II, p. 357. 127 USCCR, Federal Title VI Enforcement, pp. 238–40. 

128 HHS Interrogatory, p. 44. 

129 Ibid., p. 7. 
Staff Draft May 2004 104

The Commission recommended that OCR reorganize and it did streamline its 

organization and operations by consolidating and realigning offices and functions. It reduced the 

number of managers, offices, and units and hired staff with enforcement experience. Regional 

offices now report to a deputy director rather than to staff in a headquarters office. 

Communication and better understanding among managers, headquarters, and regions led to a 

more cohesive approach to enforcement. 

The Commission also made recommendations to enhance enforcement and OCR 

responded to the concerns, including: 

 Complaint processing. OCR needed to address its backlog and expedite complaints. OCR 

uses different strategies such as early resolution and full-scope and limited-scope reviews 

to address the backlog and expedite cases. It refined the use of limited-scope reviews and 

has made it a viable tool in complaint processing. 

 Resource accountability. OCR stressed the need for resources; however, it could not 

justify the request or explain how it would use any additional resources. OCR improved 

budget reporting and accountability. It can now track expenditures and identify areas 

where resources are needed. It has a detailed budget plan that can show funding by 

compliance activity. 

 Coordination and communication with other departmental components that have civil 

rights responsibilities. It provides ongoing civil rights training, technical assistance, 

education and outreach, and guidance to operating divisions and their recipients. The 

collaboration results in a better understanding of the different components’ 

responsibilities. 

However, where OCR did not address recommendations, deficiencies persist: 

 OCR has not expanded the pool of recipients that undergo pre-award reviews. It has a 

policy, established in the 1960s, that requires pre-award reviews for new institutional 

Medicare applicants. 

 Pre-award reviews do not include on-site visits, and the number of on-site visits for postaward reviews is lower than the number of desk audits. 

 OCR has a paucity of demographic data on beneficiaries and applicants. 

In 1996 and 1999, OCR maintained that its resources were inadequate to perform 

enforcement effectively. The Commission recommended that operating divisions assist OCR. 

For example, operating divisions could assist with data collection, technical assistance, and 

education and outreach, enabling OCR staff to increase the number of pre- and post-award 

reviews, particularly on-site visits and investigations. 

The Commission still recommends delegation of authority to eligible operating divisions. 

However, the Commission notes that any delegation lacks authority without the Secretary’s 

endorsement, and OCR’s leadership, guidance, instruction, monitoring, and oversight of 

operating divisions’ activities. There should be delineation of duties formally stated in 

memoranda of understanding. 
Staff Draft May 2004 105

HHS’ responsibilities to ensure quality services and eliminate disparities in health care 

for minorities and women are tasks that cannot be achieved without effective civil rights 

enforcement. At HHS, this is an enormous responsibility that requires effective organization, 

administration, and coordination. Delegation of authority to eligible operating divisions, with 

OCR’s guidance and leadership, may be a first step to making quality health care for all 

Americans a reality. 
Staff Draft May 2004 106

Chapter 5: Department of Housing and Urban Development 

President Lyndon B. Johnson created the U.S. Department of Housing and Urban 

Development (HUD), a cabinet-level agency under the Housing and Urban Development Act of 

1965,1 as a part his war on poverty.2 HUD has the mission to ensure a decent, safe, and sanitary 

home and a suitable living environment for every American. In its efforts to realize this mission, 

the agency creates opportunities for homeownership; provides housing assistance for low-income 

persons; works to create, rehabilitate, and maintain affordable housing; enforces the nation’s fair 

housing laws; helps the homeless; spurs economic growth in distressed neighborhoods; and 

assists local communities in meeting their development needs.3

 Consistent with its mission, HUD 

is mandated to enforce several civil rights statutes, including: 

 Title VIII of Civil Rights Act of 1968 (Fair Housing Act (FHA)), as amended.4

 Title VI of the Civil Rights Act of 1964.5

 

 Section 504 of the Rehabilitation Act of 1973.6 

 Section 109 of Title I of the Housing and Community Development Act of 1974.7

 

 Title II of the Americans with Disabilities Act of 1990.8

 

 The Architectural Barriers Act of 1968.9

 

 The Age Discrimination Act of 1975.10

 Title IX of the Educational Amendments of 1972.11 

In addition, HUD is responsible for implementing six executive orders.12

 

1

 Pub. L. No. 90-448, 82 Stat. 476 (codified as amended in scattered sections of 5, 12, 15, 18, 31, 38, 40, 42, and 49 

U.S.C. (2004)). 

2

 U.S. Department of Housing and Urban Development, “Questions and Answers About HUD,” <http://www.hud. 

gov:80/about/qaintro.cfm> (last accessed Aug. 25, 2003). 3

 U.S. Department of Housing and Urban Development, “Mission and History,” Apr. 7, 2003 <http://www.hud.gov/ 

library/bookshelf18/mission.cfm> (last accessed June 3, 2003). 

4

 Fair Housing Act of 1968, Pub. L. No. 90-284, 82 Stat. 81 (codified at 42 U.S.C. §§ 3601–3619 (2004)). 

5

 Pub. L. No. 88-352, 78 Stat. 252 (codified as amended at 42 U.S.C. §§ 2000d–2000d-(7) (2004)). 

6

 Pub. L. No. 93-112, § 504, 87 Stat. 394 (codified as amended at 29 U.S.C. § 794 (2004)). 

7

 Pub. L. No. 93-383, 88 Stat. 633 (1974) (codified at 42 U.S.C. §§ 5301–5320 (2004)). 

8

 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101–12213 and in scattered sections of 

29 U.S.C. and 47 U.S.C. (2004)). 

9

 Pub. L. No. 90-480, 82 Stat. 718 (codified as amended at 42 U.S.C. §§ 4151–4157) (2004)). 

10 Pub. L. No. 90-202, 81 Stat. 602 (codified as amended in scattered sections of 29 U.S.C. (2004)). 

11 Pub. L. No. 92-318, tit. IX, 86 Stat. 373 (codified as amended at 20 U.S.C. §§ 1681–1688 (2004)). HUD, “Fair 

Housing Laws and Presidential Orders.” 
Staff Draft May 2004 107

HUD headquarters houses 19 key offices, including that of the Secretary, Fair Housing 

and Equal Opportunity, General Counsel, and Policy Development and Research.13 In addition, 

there are 10 regional hubs wherein numerous field offices are located.14 In FY 2003, HUD had 

an estimated budget of $34.5 billion and employed the equivalent of 10,520 full-time staff.15

Acronyms are used throughout this chapter. Table 5.1 lists those referenced frequently. 

TABLE 5.1 

Acronyms in Chapter 5

Administrative Law Judge ALJ 

Annual Management Plan AMP 

Annual Performance Plan APP 

Civil Rights Implementation Plan CRIP 

Department of Justice DOJ 

Deputy Assistant Secretary DAS 

Office of Fair Housing and Equal Opportunity FHEO 

Fair Housing Assistance Program FHAP 

Fair Housing Initiatives Program FHIP 

Fair Housing Training Academy FHTA 

Limited English Proficiency LEP 

Office of the General Counsel OGC 

Public Housing Agency PHA 

Title VIII, as amended FHA 

U.S. Department of Housing and Urban Development HUD 

Previous Commission Reviews of HUD 

Between 1992 and 1996, the U.S. Commission on Civil Rights released three reports 

pertaining to HUD. Two examined the agency’s record in enforcing federal fair housing laws, 

particularly the Fair Housing Amendments Act (hereafter cited as FHA, referring to Title VIII, as 

 12 See HUD, “Fair Housing Laws and Presidential Orders.” 13 U.S. Department of Housing and Urban Development, “Headquarters Organizational Directory,” June 2, 2003, 

<http://www.hud.gov/directory/directory.cfm> (last accessed Aug. 25, 2003). 

14 U.S. Department of Housing and Urban Development, “Listing of Regional and Field Offices,” <http://hudclips.org> 

(last accessed July 1, 2003). The 10 hubs are New England, New York/New Jersey, Mid-Atlantic, Southeast 

Caribbean, Midwest, Southwest, Great Plains, Rocky Mountains, Pacific Hawaii, and Northwest Alaska, with 

regional hub offices in Massachusetts, New York, Pennsylvania, Georgia, Illinois, Texas, Kansas, Colorado, 

California, and Washington. See U.S. Department of Housing and Urban Development, “Housing Discrimination: 

Fair Housing Hubs,” June 30, 2002, <http://www.hud.gov/offices/fheo/aboutfheo/fhhubs.cfm> (last accessed June 

16, 2003). Hubs came into existence in FY 1997. See U.S. Department of Housing and Urban Development’s 

Response to the U.S. Commission on Civil Rights Interrogatory for Volume IV of the Ten-Year Review of Civil 

Rights Enforcement, Office of Fair Housing and Equal Opportunity, Dec. 5, 2003, p. 1 (hereafter cited as HUD 

Interrogatory). 

15 Hearings before a Subcommittee of the Committee on Appropriations, House of Representatives, 108th Cong., 1st 

Sess. Part 2, Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies 

Appropriations for 2004, p. 660. 
Staff Draft May 2004 108

amended). The third report analyzed HUD’s performance in enforcing the Civil Rights Act of 

1964 (Title VI) in its federally assisted programs. Prospects and Impact of Losing State and 

Local Agencies from the Federal Fair Housing System (1992) addressed HUD’s progress in 

certifying state and local agency fair housing laws as significantly comparable or “substantially 

equivalent” to FHA, and the consequences that would ensue should the laws of many agencies 

fail to be certified.16 In the 1992 report, the Commission concluded that progress toward 

certifying state and local fair housing agencies since passage of FHA was minimal and made 11 

recommendations for improvement of the certification process.17 The Fair Housing Amendments 

Act of 1988: The Enforcement Report (1994) concluded that HUD failed to aggressively enforce 

FHA and proposed 33 recommendations. Federal Title VI Enforcement to Ensure 

Nondiscrimination in Federally Assisted Programs (1996) assessed HUD’s progress in enforcing 

Title VI in federally assisted programs and included 22 recommendations for improving HUD’s 

Title VI enforcement. This study examines whether HUD has implemented recommendations 

made in the earlier three reports, and focuses on the Office of Fair Housing and Equal 

Opportunity (FHEO) as it has major, though not exclusive, responsibility for enforcing Title VI 

and FHA.18

Mission and Responsibilities—FHEO 

FHEO’s mission is to create equal housing opportunities by establishing policies and 

enforcing federal laws that prohibit discrimination in housing based on race, color, religion, sex, 

national origin, age, disability, and familial status.19 

FHEO also manages the Fair Housing Assistance Program (FHAP) and administers the 

grants awarded under the Fair Housing Initiatives Program (FHIP).20 FHAP provides financial 

assistance to supplement the enforcement activities of HUD-certified state and local agencies. 

FHAP funds support training, case processing, education and outreach, and improvements to 

agency data and information systems. HUD also reimburses these state and local agencies for 

 

16 U.S. Commission on Civil Rights, Prospects and Impact of Losing State and Local Agencies from the Federal 

Fair Housing System, September 1992, letter of transmittal (hereafter cited as USCCR, Federal Fair Housing 

System). 

FHA was signed into law on September 13, 1988, and became operational on March 12, 1989. State and local 

agencies previously operating in the federal housing system under Title VIII had an interim period of 40 months, 

ending on September 13, 1992, to revise their laws so that they are significantly comparable to FHA. During this 

interim period, such agencies operated under an Interim Referral Agreement. State and local agencies wishing to 

continue to process federal fair housing complaints must formally apply to HUD to seek certification of their fair 

housing laws as comparable to FHA. If HUD determines that their fair housing laws provide substantially equivalent 

protection as FHA, the state or local agencies are certified. See USCCR, Federal Fair Housing System, pp. 2, 10. 

HUD certification of state and local agencies’ fair housing laws or ordinances is discussed in greater detail later in 

the chapter. 

17 USCCR, Federal Fair Housing System, pp. 31–34. 18 U.S. Department of Housing and Urban Development, “About FHEO,” <http://www.hud:80/offices/fheo/ 

abotfheo/aboutfheo.cfm> (last accessed June 4, 2003) (hereafter cited as HUD, “About FHEO”). 

19 FHEO activities include implementing and enforcing FHA, Title VI of the Civil Rights Act of 1964, Section 109 

of the Housing and Community Development Act of 1974, Section 504 of the Rehabilitation Act of 1973, the Age 

Discrimination Act of 1975, and Title IX of the Education Amendments Act of 1972. HUD, “About FHEO.” 20 HUD, “About FHEO.” 
Staff Draft May 2004 109

investigating individual fair housing complaints.21 FHIP is a competitive grant program that 

provides federal funds to support the work of public and private entities in enforcing fair housing 

rights. FHIP-funded activities perform enforcement, voluntary compliance reviews, and 

education and outreach.22 

Priority of Civil Rights 

Title VI

During fact-finding for the 1996 report, the Commission uncovered two major 

weaknesses in FHEO’s organizational structure: (1) too many layers between the assistant 

secretary and the units that implemented and enforced Title VI; and (2) policy development, 

planning, and budget functions dispersed throughout two deputy secretarial offices. At the time, 

FHEO had recently reorganized into three areas: Enforcement and Investigations, Policy and 

Initiatives, and Operations and Management (see figure 5.1). Each reported to a deputy assistant 

secretary (DAS), who reported to the assistant secretary.23 Enforcement and Investigations had 

overall responsibility for enforcing Title VI. Within its Office of Compliance and Disability 

Rights, the Division of Compliance Programs performed Title VI implementation and 

enforcement, overseeing, monitoring, coordinating, and providing guidance to FHEO’s field staff 

and regional offices. The Disability Rights Division dealt with disability and access rights 

complaints in all HUD programs. Title VI field staff reported to the field liaison staff, who in 

turn reported to the assistant secretary. FHEO’s many tiered organizational structure insulated 

the assistant secretary from units enforcing Title VI, whether in the headquarters office or in the 

field offices. Further, policy development, planning, and budget preparation were separated. 

Policy and Initiatives, specifically its Office of Public Standards and Evaluation, developed 

policy, while Operations and Management, expressly the Office of Management and Field 

Coordination, prepared plans and budgets. Thus, elements crucial to Title VI enforcement were 

in different deputy secretarial offices, a situation that might divert attention from Title VI. On a 

more positive note, FHEO did not have responsibility for internal civil rights; that is, Title VII 

matters, thereby allowing staff to concentrate time and energy on external civil rights 

enforcement.24 

 

21 HUD Interrogatory, p. 3; U.S. Commission on Civil Rights, Funding Civil Rights Enforcement: 2004, June 2003, 

p. 41 (hereafter cited as USCCR, 2004 Funding Report). 22 HUD Interrogatory, p. 3. 

23 U.S. Commission on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally 

Assisted Programs, September 1996, p. 344 (hereafter cited as USCCR, Federal Title VI Enforcement). 24 USCCR, Federal Title VI Enforcement, pp. 329, 343. 
Staff Draft May 2004 110

Program Compliance Disability Rights

Field Liaisons

Field Offices

Fair Housing Initiatives 

and Voluntary 

Programs

Office of Investigations

Deputy Assistant 

Secretary 

Operations and 

Management

Program Compliance 

and Disability Rights

Secretary

Assistant Secretary

Deputy Assistant 

Secretary 

Policy and Initiatives

Deputy Assistant 

Secretary 

Enforcement and 

Investigations

FIGURE 5.1 

HUD/FHEO Organizational Structure, 1994 

Source: Constructed from U.S. Commission on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in 

Federally Assisted Programs, June 1996, pp. 327–30; 343–45. 

The Commission’s 1996 report recommended that FHEO assess its organizational setup 

for civil rights enforcement, particularly Title VI, at the headquarters, hub (region), and field 

levels.25 It encouraged FHEO to establish its independent legal office to provide legal guidance 

on Title VI and other external civil rights enforcement issues.26 The Commission also 

recommended that disability rights activities and other civil rights enforcement efforts remain 

administratively separate. Moreover, Title VI regional and field staff should report to 

headquarters staff with Title VI responsibilities to ensure direct oversight and monitoring. 

Furthermore, Title VI policy and planning staff should be integrated with Title VI enforcement 

staff so that actual enforcement experience inform policy development; and to ensure that Title 

VI initiatives are considered during the planning process. Failing this, the Office of Compliance 

and Disability Rights should stay in close contact with Policy and Initiatives to ensure priority 

attention to Title VI policy development; and with Operations and Management to guarantee that 

the latter gave similar attention to Title VI planning and budget preparation.27

 

25 Ibid., p. 343. 

26 USCCR, The Fair Housing Amendments Act of 1988: The Enforcement Report, September 1994, p. 224 (hereafter 

cited as USCCR, Fair Housing Amendments Act Report); USCCR, Federal Title VI Enforcement, p. 344. 27 USCCR, Federal Title VI Enforcement, pp. 343–44. 
Staff Draft May 2004 111

FHEO claims it regularly reviews its programs and their effectiveness. Since the 

reorganization in 1994, FHEO has submitted annual reports to Congress showing its progress 

toward meeting its statutory objectives. GAO assessed HUD twice, in 1994 and 1997. HUD 

officials stated that changes within the agency in 1994 and 1995 led to a separate Disability 

Rights Division and expanded FHA, Title VI, and Section 504 enforcement programs, all of 

which helped FHEO to better fulfill its Title VI and Title VIII missions. These changes affected 

headquarters and field offices. By 1995, to give visibility to disability rights throughout the 

agency, HUD created an Office of Disability Policy that reported to the secretary, a reporting 

situation that no longer exists.28 

FHEO’s assistant secretary still reports to the HUD Secretary, and is among the agency’s 

key principal staff.29 FHEO and the Office of the General Counsel (OGC) share Title VI 

enforcement duties, though without operating procedures. Nonetheless, both offices work closely 

on Title VI matters. On FHEO’s internal structure, the Commission detects a critical departure 

from 1994: the addition of a general deputy assistant secretary (general deputy), the sole FHEO 

managerial staff member reporting to the assistant secretary (see figure 5.2). Moreover, whereas 

previously DAS reported to the assistant secretary, he or she now reports to the general deputy, 

and formally does not have direct access to the assistant secretary. Two areas are now under a 

DAS—Enforcement and Programs, and Operations and Management—compared with three 

previously (see figures 5.1 and 5.2). The DAS for Enforcement and Programs, along with field 

offices, and in cooperation with OGC, carries out Title VI enforcement for HUD.30 With the 

addition of the general deputy and the change in reporting for DAS, the assistant secretary is 

formally further removed than previously from headquarters units directly involved with Title VI 

enforcement, and as this study shows, from hub and field staff as well. In a later communication 

with the Commission, HUD states that: 

[The] DASs and Director of the office of Policy and Program Evaluation report directly 

to the general deputy primarily for supervis[ory] purposes, but that line of reporting 

reflects only part of the command structure, it does not reflect the day-to-day interaction 

of the various members of senior management . . . The assistant secretary has regularly 

scheduled meetings with the general deputy, the DASs, and the Director of the Office of 

Policy and Program Evaluation and attends regional meetings with them and the Hub 

directors.31

 

28 HUD Interrogatory, p. 1. 

29 Ibid. U.S. Department of Housing and Urban Development, “Key Principal Staff,” June 2003, <http://hud.gov/ 

library/bookshelf16/keyhq.cfm> (last accessed July 2, 2003). 

30 HUD Interrogatory, pp. 2–3. 

31 Carolyn Peoples, assistant secretary, Fair Housing and Equal Opportunity, U.S. Department of Housing and 

Urban Development, letter (attachments, May 18, 2004, p. 1 (hereafter cited as Peoples letter). 
Staff Draft May 2004 112

FIGURE 5.2 

HUD/FHEO Organizational Structure, 2004

Source: Floyd O. May, deputy general assistant secretary, Office of Fair Housing and Equal Opportunity, U.S. Department of Housing and 

Urban Development, through Kirk I. Perry, senior program analyst, Office of Policy and Program Evaluation, U.S. Department of Housing and 

Urban Development, e-mail, Nov. 20, 2003. 

As was the case in 1996, enforcement and planning staff are separate. The Office of 

Operations and Planning is responsible for Title VI planning, specifically establishing annual 

goals for enforcement activities. HUD officials indicate that the Office of Enforcement and 

Programs works cooperatively on Title VI planning to make clear its resource requirements. 

Responsibility for policy development and enforcement is located in the same DAS area. 

Specifically, the Office of Enforcement develops policy and enforces Title VI, while the Office 

of Programs collaborates with all HUD program offices to develop program monitoring and 

compliance guidance.32 

Today, FHEO does not have a legal unit located in its office. Legal support for Title VI, 

FHA, and other external civil rights enforcement comes from OGC and the 10 regional counsel 

 

32 HUD Interrogatory, p. 4. HUD states that the agency clearance procedures are set forth in HUD handbook 

000.2REV-2. See HUD Interrogatory, p. 4. 

Compliance and 

Disability Rights 

Support Division

Office of Programs Office of Enforcement

Program Standards

Deputy Assistant 

Secretary for 

Operations and 

Management

Deputy Assistant 

Secretary for 

Enforcement and 

Programs

Secretary

Assistant Secretary

General Deputy 

Assistant Secretary

Office of Policy and 

Program Evaluation

Young Implementation 

Office

Ten Regional Hubs

Field Oversight Staff

Economic Opportunity 

Staff

Office of Management 

and Planning

Office Information 

Services and 

Communications

Information and 

Communications Unit

Budget and 

Administrative Support 

Division

FHIP/FHAP Support 

Division

Enforcement Support 

Division
Staff Draft May 2004 113

offices. Within OGC, the Fair Housing Enforcement Division is dedicated to providing FHEO 

with legal assistance and enforcing civil rights laws. FHEO is the only HUD program office that 

has this arrangement. Field oversight staff and the regional hubs now report to the general deputy 

(see figure 5.2). All field staff, whether Title VI or Title VIII, report to program center directors, 

who in turn report to the hub directors. Regional and field staff investigate Title VI and FHA 

complaints, and conduct Title VI monitoring reviews and compliance reviews. Disability rights 

activities remain separate from other civil rights enforcement activities.33 

Title VIII 

In 1994, the implementation and enforcement of FHA was highly fractured. The HUD 

Secretary divided this responsibility among the FHEO assistant secretary, general counsel, and 

chief administrative law judge (ALJ). The assistant secretary delegated some fair housing 

functions to regional directors, who reported to regional administrators. The general counsel also 

delegated some fair housing functions to regional counsels, who were jointly supervised by 

regional administrators and the general counsel. Regional administrators reported to the deputy 

secretary. An assistant to the Secretary advised key principal staff on all aspects of field 

management and was the Secretary’s point person on all regional office activities.34

The FHEO assistant secretary charged to develop fair housing policy and disseminate 

internal guidance to staff for implementing HUD policies did not have line authority over the 

regional directors and regional counsels, and carried out the duties without the benefit of their 

field perspective and experience. Making matters worse, the assistant secretary’s decisions as to 

reasonable cause became final only after general counsel review.35 The Commission therefore 

recommended that HUD create an independent, deputy-secretarial administrative agency with its 

own administrative and legal staff for FHA implementation. All regional fair housing offices, it 

said, should report to the deputy secretary to ensure direct monitoring. The Commission favored 

a structure in which the general counsel and deputy secretary jointly supervise and evaluate 

regional attorneys who worked on fair housing. Finally, the Office of the Administrative Law 

Judge should continue to be an independent entity within HUD.36 

HUD now states that the Office of Enforcement and the Office of Programs, under the 

purview of the DAS for Enforcement and Programs, are responsible for FHA enforcement and 

the administration of FHIP and FHAP. The Enforcement Support Division develops standards, 

regulations, rules, guidelines, and handbooks for FHA implementation. Moreover, the ALJ office 

remains a functionally independent unit within HUD.37 Furthermore, the assistant secretary has 

the authority to make a cause or no cause decision with general counsel concurrence, thus raising 

the office’s stature. Regulations govern the relationship between FHEO and OGC.38 HUD 

 

33 HUD Interrogatory, pp. 1, 4, 5, 15; Peoples letter, p. 4. 

34 USCCR, Fair Housing Amendments Act Report, p. 68. 

35 Ibid., pp. 68–69. 

36 Ibid., p. 224. 

37 HUD Interrogatory, p. 3. 

38 Ibid., p. 1. The statutory arrangement between the assistant secretary and the general counsel is described in 24 

C.F.R. pts. 103 and 180. Peoples letter, p. 4. 
Staff Draft May 2004 114

officials point out that the Office of Enforcement and OGC collaborate closely on FHA claims 

for First Amendment relevance, cases where FHEO and regional counsel are unable to reach 

agreement, and policy development. A written memorandum of understanding (MOU) defines 

the working relationship between each FHEO hub director and regional counsel on complaint 

intake, jurisdictional determinations, investigative plan development, investigations, conciliation, 

determinations of reasonable cause, preparation of evidence and witnesses, and administrative 

trials.39 

Among this section’s key points are: 

 The FHEO assistant secretary now has the authority to make a determination of cause or 

no cause with general counsel concurrence, thus raising the office’s stature. 

 FHEO is now divided into two main DAS units: (1) Enforcement and Programs and (2) 

Operations and Management. As previously, enforcement and planning responsibilities 

remain in separate offices. 

 FHEO now has a general deputy assistant secretary, the only managerial staff member to 

formally report to the FHEO assistant secretary. In practice, the assistant secretary has 

informal and scheduled formal meetings with headquarters and field staff responsible for 

implementing Title VI and FHA. 

Resources—Funding and Staffing 

The Commission’s 1996 report found that FHEO did not maintain a separate budget for 

HUD’s Title VI federally funded fair housing programs, indeed, for external civil rights as a 

whole. The Commission advised FHEO to develop a separate budget account for external civil 

rights programs. Furthermore, FHEO should implement and maintain a management information 

system to track resources and expenditures according to statute and specific civil rights activities. 

Such a system would allow the assistant secretary to readily base key enforcement decisions, 

such as future enforcement budget requests on actual expenditures and staff assignments, on 

factual workload.40 

FHEO does not maintain a separate account for Title VI or for any external civil rights 

activities. When HUD’s “Total Estimation and Allocation Mechanism” designed to capture 

workload and time usage is fully implemented, FHEO will be able to track manpower used to 

perform enforcement activities.41 HUD officials indicate that the agency’s funding for salaries 

and expenses supports Title VI and FHA workload and staffing. FHEO’s budget is part of 

HUD’s overall salaries and expenses request. The agency receives a lump sum appropriation and 

gives FHEO an allotment for salaries and expenses.42 Congress funds FHIP and FHAP separately 

 

39 HUD Interrogatory, p. 2. 

40 USCCR, Federal Title VI Enforcement, p. 345. 

41 Peoples letter, p. 5. 

42 HUD Interrogatory, p. 8. 
Staff Draft May 2004 115

and, consequently, they have separate budgets.43 HUD’s year-old “Total Estimation and 

Allocation Mechanism” (TEAM) system, a real-time and task-based reporting system, captures 

workload accomplishments and time usage of all enforcement activities.44 

As to fair housing, the Commission’s 1994 report found an enormous increase in 

workload in FHEO due to growth in the number of complaints from the original protected groups 

(race, color, religion, and national origin); and complaints from the newly protected classes 

(disability and familial status). The Commission urged Congress and the President to ensure that 

HUD received adequate funds and other resources to fulfill its responsibilities.45 Significantly, 

the Commission had already made the same appeal in its 1992 report. The 1992 report also 

advised the agency to develop a management plan to ensure adequate resources and staff for 

processing fair housing complaints within the congressionally mandated 100-day requirement.46

From FY 1998 through FY 2003, the budget for salaries and expenses showed scant 

increase during the first four years, merely changing from $45.5 million in FY 1998 to $51.4 

million in FY 2001. Funding rose to $58.5 million in FY 2002, and to $65.7 million in FY 2003 

(see figure 5.3).47 The current funding level has affected, for example, HUD’s ability to perform 

post-award compliance reviews on a significant number of funding recipients and travel to 

monitor funding recipients.48 

FHAP and FHIP funding is examined for the same period. Funding for FHAP declined 

from $15 million in FY 1998 to $13 million in FY 1999; showed an upward trend between FY 

1999 and 2002, rising to $25.6 million; then remained at this level in FY 2003 (see figure 5.3). 

Overall, annual increases are unremarkable except for FY 2000, despite that the number of 

complaints filed with FHAP is growing yearly. FHAP agencies process approximately two-thirds 

of all fair housing complaints filed with FHAP and HUD.49 

Congress intends FHIP to supplement government enforcement and educational 

activity.50 FHIP funding rose annually between FY 1998 and 2000, from $15 million to $24 

million, stayed at the same level in FY 2001, and then decreased to $20.3 million and $20.1 

million in the remaining two years (see figure 5.3). This is not an encouraging trend especially in 

light of the following research findings: (1) a 2001 George Washington University study on 

segregation reported that a key reason why persons who suffered discrimination do not take legal 

action is that they think that nothing would come out of it; and (2) fair housing complaints filed 

each year with the National Fair Housing Alliance, Department of Justice (DOJ), HUD, and 

FHAP constitute less than 1 percent of the estimated illegal acts of housing discrimination that 

 

43 In FY 2003, Congress appropriately $20.5 million for FHIP and $25.6 million to FHAP. See HUD Interrogatory, 

p. 7. 

44 HUD Interrogatory, p. 7. 

45 USCCR, Fair Housing Amendments Act Report, p. 221. 

46 USCCR, Federal Fair Housing System, p. 32. 47 USCCR, 2004 Funding Report, p. 36. 48 HUD Interrogatory, pp. 43, 55. 

49 Complaint processing is more fully discussed in later sections of this chapter. 

50 HUD Interrogatory, p. 28. 
Staff Draft May 2004 116

occurs yearly.51 Taken together, these findings point to an urgent need for greatly expanded 

FHIP and HUD education and outreach. 

FIGURE 5.3 

HUD/FHEO Budget, 1998–2003 

 Source: U.S. Commission on Civil Rights, Funding Federal Civil Rights Enforcement: 2004, June 2003, pp. 36, 42–43. 

HUD officials say FHEO had 750 full-time-equivalent staff members (FTEs) in FY 1994 

and approximately 758 FTEs in FY 2003. While FY 2003 staffing levels are similar to FY 1994 

levels, HUD says FHEO experienced steady staffing declines through the 1990s, reaching its 

lowest level of 584 in FY 2000.52 The Commission’s own analysis of FHEO’s FTE data in 2004 

focuses on a different period, FY 1998 through 2003; but evidence leads to a similar conclusion, 

that the staffing situation is foreboding an deserves monitoring. FHEO’s FTE total (headquarters 

and field offices combined) exhibits a slightly upward trend, showing a net gain of 167 FTEs 

(125 in the field offices and just 42 at headquarters).53 But a caveat is necessary; there was little 

growth in FTEs during the first four years, and the FY 2002 and 2003 increases account for the 

 

51 National Fair Housing Alliance, “Less than One Percent of Illegal Housing Discrimination Reported, According 

to New Report by National Fair Housing Alliance,” press release, Apr. 16, 2003. A more detailed discussion follows 

in this chapter. Testifying at a joint congressional hearing a National Council on Disability representative said that 

lack of funds and staff for FHAP and FHIP have caused shortfalls in their intended roles. See Joint Hearing Before 

the Subcommittee on Housing and Community Opportunity and the Subcommittee on Oversight and Investigation 

of the Committee on Financial Services, U.S. House of Representatives, June 25, 2002, p. 115. 

52 HUD Interrogatory, p. 8. HUD data showed 587 for FY 2000. See U.S. Commission on Civil Rights Document 

Request #4. FHEO’s analysis of its dismal staffing situation is confirmed by the National Council on Disability, in 

Reconstructing Fair Housing, Nov. 6, 2001, pp. 206–07. 53 Data derived from U.S. Commission on Civil Rights Document Request #4. 

45.5 47.6 47.5

51.4

58.5

65.7

15

22 24 24

20.3 20.3

13

20 22

25.6 25.6

$0.0

$10.0

$20.0

$30.0

$40.0

$50.0

$60.0

$70.0

1998 1999 2000 2001 2002 2003

Fiscal year

Millions of dollars

FHEO FHIP FHAP
Staff Draft May 2004 117

upward trend (see figure 5.4). Civil rights enforcement is heavily staff-based; staff conduct 

interviews, prepare guidance documents, review plans, and investigate complaints. Without 

adequate staffing, FHEO cannot fully carry out its mission.54 For example, the current staffing 

level has affected FHEO’s ability to conduct an adequate number of post-award reviews to 

ensure that funding recipients are in compliance with Title VI.55 Now HUD is offering cash 

buyouts in four offices, one of which is FHEO, in an attempt to reduce its headcount to comply 

with a congressional mandate of a ceiling of 9,177 employees.56 In addition, FHEO (like most 

HUD offices) has lost and continues to lose a large number of experienced employees to 

retirement. This situation clearly complicates an already serious staffing situation.57 

FIGURE 5.4 

HUD/FHEO Staffing, 1998–2003

 Source: U.S. Commission on Civil Rights Document Request #4. 

On the Commission’s 1992 recommendation that FHEO develop a management plan to 

ensure adequate resources and staff for processing fair housing complaints within the 100-day 

requirement, HUD indicates that it began a special initiative in FY 2000 to reduce the “aged 

case” inventory (case backlog). At the start of the initiative, the aged inventory was 85 percent; 

by FY 2003 it fell below 25 percent. FHEO accomplished this reduction through diverting 

resources and travel funds to the initiative and by providing optional training to staff to increase 

 

54 National Council on Disability, Reconstructing Fair Housing, Nov. 6, 2001, p. 11. 

55 HUD Interrogatory, p. 43. 

56 Stephen Barr, “Window for HUD Buyouts in Four Offices Opens Today,” Washington Post, May 19, 2004, p. B2. 57 HUD Interrogatory, p. 64. 

591 592 587 608

653

758

455 477 461 480 492

580

136 115 126 128 161 178

0

100

200

300

400

500

600

700

800

1998 1999 2000 2001 2002 2003

Fiscal year

Full-time-equivalent staff 

FHEO FTEs Field office FTEs Headquarters FTEs
Staff Draft May 2004 118

their understanding of investigation policies and processes.58 HUD states that the initiative is 

ongoing, although focus now is on new cases as the aged inventory is below 25 percent.59

Among this section’s key points are: 

 Yearly funding increase to FHEO’s budget was scant between FY 1998 and 2001, but 

slowed in FY 2002–2003. The FY 2003 FTE level of 758 exceeds that of the FY 1992 

level by only 15, at which time the Commission recommended an increase in resources 

for HUD. The agency’s buyout efforts bring the number of employees in line with a 

congressionally mandated ceiling. 

 FHEO diverted resources and travel funds to implement an initiative to reduce aged 

complaint cases. 

Planning 

The Commission evaluated HUD’s Title VI Civil Rights Implementation Plans (CRIPs) 

for 1990 through 1994 in its 1996 report.60 Overall, the CRIPs were not adequate as 

informational tools for DOJ or as management and planning tools for HUD. For example, the 

major objectives were generally vague and did not embody criteria for measuring 

accomplishments. The Commission said that the Title VI CRIP should be revised according to 

DOJ’s “Guidelines on Agency Implementation Plans.” The Commission also advised HUD to 

develop a “comprehensive civil rights enforcement plan” for all its civil rights responsibilities. 

This plan should be updated every three months and adjustable to increases and decreases in 

actual compliance activities and new or developing issues.61 

HUD now states that the agencywide strategic plan incorporates CRIP and a 

comprehensive civil rights enforcement plan. The current strategic plan covers FY 2003–2008. 

HUD’s strategic framework consists of a mission statement, six strategic goals, and 

corresponding strategic objectives.62 Three strategic goals relate to HUD’s programs 

(programmatic goals): (1) increasing homeownership opportunities, (2) promoting decent 

affordable housing, and (3) strengthening communities. The remaining three strategic goals 

apply agencywide (cross-cutting goals): (4) ensuring equal opportunity in housing, (5) embracing 

high standards of ethics, management, and accountability, and (6) promoting participation of 

faith-based and community organizations. Several long-term strategic objectives support each 

strategic goal. For example, “resolve discrimination complaints in a timely manner” is a strategic 

objective for the cross-cutting strategic goal “ensure equal opportunity in housing.”63 HUD has 

also identified a set of long-term performance measures/indictors and intermediate 

 

58 Ibid., p. 8. 

59 Kirk I. Perry, senior program analyst, Office of Policy and Program Evaluation, U.S. Department of Housing and 

Urban Development, interview, Mar. 3, 2004. 

60 USCCR, Federal Title VI Enforcement, pp. 340–42. 61 Ibid., p. 352. 

62 U.S. Department of Housing and Urban Development, HUD Strategic Plan, FY 2003–FY 2008, March 2003, p. 3 

(hereafter cited as HUD, FY 2003–2008 Strategic Plan). 

63 HUD, FY 2003–2008 Strategic Plan, p. 2. HUD provided a copy of the current strategic plan. 
Staff Draft May 2004 119

measures/indicators for each strategic goal.64 The long-term measures/indicators “reflect the 

projected long-term outcomes of the policies employed to achieve the [particular] goal,” while 

the “intermediate measures reflect shorter term results that HUD plans to track closely over the 

next year or two to determine if progress is being made to achieve the [particular] goal.”65 An 

Annual Performance Plan (APP) supports the strategic plan and is developed at the end of an 

assessment process. Thus, at the start of each year, HUD officials review the previous year’s 

accomplishments and establish targets for the current year.66 Additional considerations are the 

number and types of complaints, concerns of advocates and beneficiaries, results of a detailed 

risk analysis, and the agency’s staffing and funding situation.67 APP has numerical criteria for 

measuring accomplishments.68 For FY 2004 the APP presents the strategic goals, corresponding 

strategic objectives, and output measures. Each performance measure/indicator is systematically 

discussed under four subtitles: (a) indicator background and context, (b) data source, (c) 

limitations/advantages of the data, and (d) validation, verification, and improvement of 

measure.69 

The two strategic goals, “ensure equal opportunity in housing” and “embrace high 

standards of ethics, management and accountability,” and related strategic objectives and APP 

outcome indicators are particularly relevant to FHEO’s mission. FHEO’s Annual Management 

Plans (AMPs) are designed to support realization of APP, and therefore that of the strategic 

plan.70 Thus, AMP contains APP indicators (described as national goals in the AMP) appropriate 

to FHEO’s mission and annual target for each indicator and related guidance for staff. For 

example, in regard to the fair housing indicator/national goal “the percentage of fair housing 

complaints aged over 100 days will decrease by two percentage points from FY 2003 level of the 

HUD inventory,”71 the FHEO annual target is 17 percent. The related guidance to staff states that 

each hub is responsible for ensuring that the open inventory of aged cases decreases to no more 

than 17 percent by the end of the fiscal year and that FHEO headquarters will monitor progress.72

 

64 For examples of long-term performance measures and intermediate measures supporting the goal, “Ensure Equal 

Opportunity in Housing,” see HUD, FY 2003–2008 Strategic Plan, pp. 9, 11. 65 HUD, FY 2003–2008 Strategic Plan, n. 3, p. 9. 

66 HUD Interrogatory, p. 8. 

67 U.S. Department of Housing and Urban Development, “Annual Performance Plan, Fiscal Year 2004,” April 2003, 

p. v (hereafter cited as HUD, APP FY 2004). 

68 See, e.g., HUD, APP FY 2004, “Resources Supporting Strategic Goal: Ensure Equal Opportunity in Housing—

Budget Authority and Staff Levels,” p. 47. 

69 HUD, APP FY 2004, “Part 2: Performance Indicator, Goal FH: Ensure Equal Opportunity in Housing,” p. 139. 

70 U.S. Department of Housing and Urban Development, “FY 2004 Management Plan: Office of Fair Housing and 

Equal Opportunity.” AMPs align operations with APP and set targets and activities for each part of HUD, including 

FHEO. See FY 2001 Information and Reporting Requirements for Agencies Covered by Executive Order 12,250 

(October 1, 2000—September 30, 2001); HUD Interrogatory, p. 9. 

71 This is an indicator for the strategic objective “Resolve Discrimination Complaints on a Timely Basis.” The 

objective itself is related to the strategic goal “Ensure Equal Opportunity in Housing.” See HUD, APP FY 2004, p. 

129. Note that the discrimination indicators/national goals and targets center on fair housing. This discussion serves 

to demonstrate that the APP and AMP contain indicators and targets. Both also include Title VI indicators and 

targets. 

72 U.S. Department of Housing and Urban Development, “FY 2004 Management Plan, Office of Fair Housing and 

Equal Opportunity,” p. 4. 
Staff Draft May 2004 120

HUD officials also state that the strategic plan, APP, and AMP attempt to project resources and 

budget constraints to the extent possible. They point out, however, that appropriation cycle 

delays and unmatched requests render resource and budget planning more difficult. Fortunately, 

AMPs may be modified midyear when actual resources and funding differ from those 

projected.73 APP and AMP are the only plans that change annually.74 

The performance indicators cited above measure process results. Indicators that measure 

mission accomplishment, that is, the extent to which HUD increases homeownership, supports 

community development, and increases access to affordable housing free from discrimination, 

are also needed. Both types are essential for determining overall progress. Social science 

methodology such as testing, experimentation, analysis of behavioral data, or public surveys is 

generally used to collect data to evaluate mission progress.75

Among this section’s key points are: 

 HUD’s strategic plan combines CRIP and a comprehensive civil rights enforcement plan. 

 An APP operationally supports the strategic plan. 

 FHEO’s AMP aligns operations with APP and sets targets and provides related guidance 

to staff for achieving targets. 

Policy Guidance 

Regulations 

In its 1996 report, the Commission noted that HUD last updated its Title VI regulations in 

1973. The regulations did not reflect recent developments in the law and were not modified to 

include examples of discrimination specific to each type of HUD’s federally assisted programs. 

Besides, the list of HUD’s federally assisted programs in “Appendix A” was out of date. 

Accordingly, the Commission said HUD should issue revised Title VI regulations and clarify the 

effect of the Civil Rights Restoration Act of 1987. HUD should also provide examples of 

discrimination relating to each type of HUD’s federally assisted programs and annually update 

its list of federally assisted programs.76

HUD, in collaboration with DOJ, is now finalizing revisions to its Title VI regulations in 

response to the Civil Rights Restoration Act of 1987 and the Third Circuit Court of Appeals’ 

 

73 HUD Interrogatory, pp. 9–10. 

74 FY 2001 Information and Reporting Requirements for Agencies Covered by Executive Order 12,250, Leadership 

and Coordination of Non-Discrimination Laws, Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (1980), reprinted in 

42 U.S.C. § 2000d note (2004). 

75 Social or behavioral science methods include laboratory experiments, field experiments, analysis of observational 

data and natural experiments, and survey and administrative records reports. 

76 USCCR, Federal Title VI Enforcement, p. 346. 
Staff Draft May 2004 121

decision in Cureton v. National Collegiate Athletic Association.77 The list of HUD’s federally 

assisted programs has been revised and is being finalized for OMB review.78 

Guidelines 

Previous Commission research found that HUD did not publish Title VI guidelines for 

each of its federally assisted programs. Hence, the Commission said that FHEO must provide 

Title VI staff with step-by-step guidelines for implementing and enforcing this law for each type 

of HUD’s federally assisted program. Guidelines were especially critical in state and locally 

administered programs as local agencies assume Title VI compliance responsibility. The 

Commission therefore recommended that guidelines pertaining to state and locally administered 

programs should (1) establish methods of administration for the state and local government 

agencies; (2) ensure that recipients conduct self-assessment of their compliance status, including 

remedying any deficiencies discovered; (3) include definitive standards on implementation, 

compliance, and enforcement for states and local agencies; (4) set forth and explain the process 

for collecting data from funding recipients, and (5) address requirements for public education 

and community outreach related to Title VI’s nondiscrimination mandate.79 

HUD now indicates that Title VI guidelines, known as “Civil Rights Related Program 

Requirements,” are included in all HUD program regulations and handbooks that agency staff 

and funding recipients use.80 With respect to (1) and (2) above, HUD says that when applied to 

Title VI, these requirements address questions pertaining to how federally assisted programs 

benefit eligible persons; as well as how funding recipients ensure that their programs and 

services benefit all segments of the eligible population on a nondiscriminatory basis. The 

requirements that affect Title VI include site and neighborhood standards, public housing tenant 

selection and assignment plans, and affirmative fair housing marketing plans and strategies. 

HUD program handbooks, for example, the Public Housing Occupancy Guidebook and the 

Occupancy Requirements of Subsidized Multifamily Housing Programs, contain other Title VI 

implementation guidance.81 In regard to (3) above, HUD says assisted recipients must comply 

with Title VI and ensure subrecipients’ compliance. HUD does not issue guidelines to federally 

assisted recipients since the investigation of Title VI noncompliance is its responsibility. As to 

(4) above, HUD further states that HUD program offices collect racial and ethnic data; for 

example, the Office of Public and Indian Housing uses the “Public Housing Information Center 

System” to record demographic data. Finally, on (5) above, HUD indicates that FHEO’s local 

field staff conduct Title VI education and outreach activities.82

 

77 198 F.3d 107 (3d Cir. 1999). See HUD Interrogatory, p. 11. 

78 Peoples letter, p. 5. 

79 USCCR, Federal Title VI Enforcement, pp. 346–47. 80 HUD Interrogatory, p. 12. 

81 HUD provided copies of the two handbooks. 

82 HUD Interrogatory, pp. 12–14. Additional examples are found in these same pages. 
Staff Draft May 2004 122

Policies 

The Commission’s 1996 report found that FHEO issued “guidance notices” that 

elaborated on HUD policy on certain Title VI implementation and enforcement issues. The 

Commission advised HUD to regularly develop policies on Title VI implementation that enable 

enforcement staff and funding recipients to thoroughly understand Title VI compliance with 

respect to specific HUD-administered programs. Further, policy directives should address (1) 

Title VI implementation and enforcement, in particular on HUD’s state and locally administered 

programs (such as block grants and home improvement in affordable housing programs); (2) 

discriminatory practices prohibited in certain types of HUD programs (such as steering 

applicants to same-race housing); and (3) developing and changing legal issues affecting Title VI 

compliance (such as amendments to statutes).83 

HUD recently issued guidance to funding recipients that provide services to persons with 

limited English proficiency (LEP).84 HUD also says that in the past five years, it has developed 

and disseminated Title VI policies. For instance, after the Quality Housing and Work 

Responsibility Act of 1988 was enacted, HUD issued and revised numerous regulations, such as 

(1) creating a site-based waiting list within public housing;85 (2) including civil rights protections 

in the preamble of the Section 8 Homeownership Program Rule [indicating] that Public Housing 

Agencies (PHAs) may not steer families to particular units or neighborhoods; . . . [that] PHAs 

must provide assistance to expand housing opportunities”; and (3) preventing predatory lending, 

specifically PHAs may review lender’s qualifications as well as the terms of the loan before 

sanctioning homeownership assistance in order to protect participating families from abusive 

lending practices. HUD may disqualify a proposed financial transaction, such as financing, 

refinancing or other debt, if PHAs decide that the debt is unaffordable or the lender or the terms 

of the loan fail to meet PHA qualifications.86 HUD further says that FHEO staff use the DOJdeveloped Complaint and Compliance Review Manual and the Legal Manual in their 

enforcement work.87 

FHA grants the HUD Secretary authority to review the final decisions of ALJs with 

respect to all findings and conclusions of law, and to issue final decisions. The HUD Secretary 

can affirm, modify, or nullify an ALJ’s initial decision, or send the decision back to the ALJ for 

further proceedings.88 The Commission’s 1992 report showed that the Secretary used this review 

process to establish policies on new and controversial adjudication. The Commission advised 

 

83 USCCR, Federal Title VI Enforcement, p. 347. 84 U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, “HUD 

Releases Limited English Proficiency Guidance,” <http://www.hud.gov/offices/fheo/index/index.cfm> (last 

accessed Jan. 9, 2004). 

85 Rule to Deconcentrate Poverty and Promote Integration in Public Housing, 65 Fed. Reg. 81,214 (2000) (to be 

codified at 24 C.F.R. pt. 903). See HUD Interrogatory, p. 14. 86 Section 8 Homeownership Program, 65 Fed. Reg. 55,134 (2000) (codified at 24 C.F.R pts. 5,903 and 5,982). See

HUD Interrogatory, pp. 14–15. 

87 HUD Interrogatory, p. 15. 

88 42 U.S.C. § 3612(h) (2004). USCCR, Fair Housing Amendments Act Report, pp. 165–66. 
Staff Draft May 2004 123

HUD to set agency policy using a public process that involves formal posting, notice, and public 

comment. Moreover, HUD should reverse established policies in the same way.89 

HUD officials now explain that FHEO’s assistant secretary is responsible for interpreting 

FHA and publishing resulting policies in the Federal Register.

90 Major policies that HUD did not 

publish in the Federal Register are available on the HUD Web site’s online public library.91 The 

agency also has published technical guidelines for housing accessibility in the Federal 

Register.92 Policies that interpret FHA may also be developed through the complaint process. For 

example, upon FHEO’s determining that there was reasonable cause to believe that 

discrimination occurred, the regional counsel or OGC’s Fair Housing Enforcement Division 

issues a discrimination charge and prosecutes the case before HUD’s ALJ office. Policy 

decisions on administrative cases usually are made before a charge of discrimination is issued. 

This is the case because FHA administrative adjudication is a lengthy process, averaging about 

six months, from charge to initial decision. These decisions, too, are available to the public on 

HUD’s Web site.93 

As to the expanded jurisdiction resulting from the Fair Housing Amendments Act of 

1988—adding disability and familial status—the Commission’s 1994 report found that privacy 

rights of persons in real estate transactions were subjected to dispute. For example, in one case, a 

condominium association attempted to require an owner to produce a medical statement to 

certify her disability before it would approve her to use a flotation device in the building’s 

swimming pool. In another situation, an ALJ ruled as lawful questions about whether an 

applicant’s children were noisy. HUD, however, held that it was improper to pose questions to 

potential tenants or owners that indicate an illegal bias against groups that had suffered historical 

discrimination. Clearly, HUD needed to further develop policy positions for new disability and 

familial status enforcement. Thus, the Commission’s 1994 report recommended that HUD issue 

policy guidance detailing what inquiries were proper regarding tenant suitability and regarding 

the disability of a person in a real estate transaction.94 

HUD officials indicated that the agency has now issued policy guidance regarding proper 

inquiries related to disability, familial status, real estate transactions, and tenant suitability. These 

 

89 USCCR, Fair Housing Amendments Act Report, p. 230. 

90 HUD’s interpretation of FHA can be found in the Fair Housing Act regulations starting at 24 C.F.R. Part 100. See

HUD Interrogatory, p. 15. 

91 U.S. Department of Housing and Urban Development, “Library,” Dec. 10, 2003, <http://www.hud.gov/offices/ 

fheo/library/index.cfm> (last accessed Dec. 23, 2003). Also on the Web site are online training and guidance on 

design and construction requirements of FHA. See Fair Housing Accessibility FIRST, “Training Program,” 

<http://www.fairhousingfirst.org/trainingprogram.asp> (last accessed Dec. 12, 2003); “Educational Materials,” 

<http://www.fairhousingfirst.org/educationalmaterials.asp> (last accessed Dec. 23, 2003); “Legal Materials,” 

<http://www.fairhousingfirst.org/legalmaterials.asp> (last accessed Dec. 23, 2003). 

92 HUD has also developed a design manual to help housing developers comply with design and construction 

requirements specified in FHA. See HUD Interrogatory, p. 15. 

93 U.S. Department of Housing and Urban Development, “Fair Housing Act Cases,” Apr. 11, 2003, 

<http://www.hud.gov/offices/oalj/cases/fha/index.cfm> (last assessed Dec. 23, 2003). HUD notes that the 

administrative decisions are also available in Westlaw’s database FAIRHOUS for a fee. See HUD Interrogatory, p. 15. 

94 USCCR, Fair Housing Amendments Act Report, pp. 227–28. 
Staff Draft May 2004 124

may be issued in the form of regulations or policy guidance; found in handbooks, and published 

in the Federal Register.

95 Agency officials emphasize that HUD uses policy guidance in all FHA 

enforcement activities, such as case investigation, analysis and prosecution, responses to general 

inquiries, and drafting and finalization of legal memoranda.96

Among this section’s key points are: 

 HUD, in collaboration with DOJ, is now finalizing revisions to its Title VI regulations. 

 Title VI guidelines, known as “Civil Rights Related Program Requirements,” are 

included in all HUD program regulations and handbooks. 

 In the past five years, HUD has developed and disseminated Title VI policies. 

Enforcement Procedures 

As reported in the Commission’s 1996 report, FHEO produced several technical guidance 

memoranda and manuals, as well as a handbook, outlining enforcement procedures specific to 

certain funding programs. HUD did not, however, update the 1976 procedures manual designed 

principally for Title VI enforcement. The Commission said that enforcement staff should 

reference the most current information in their work, thus HUD must update this manual.

Moreover, HUD should continue issuing Title VI technical guidance, memoranda, manuals, and 

handbooks on program-specific procedures as new programs develop.97 

HUD now indicates that it has continued to issue and revise program regulations and/or 

handbooks for each HUD-assisted program. For example, HUD has developed the “Public 

Housing Occupancy Handbook” and the “Occupancy Requirements of Subsidized Multifamily 

Housing Programs.”98 FHEO staff now use DOJ’s Title VI Complaint and Compliance Review 

Manual and the Legal Manual instead of the 1976 Title VI procedures manual for enforcement 

work. As such, HUD did not update the 1976 Title VI manual. Furthermore, the Civil Rights 

Threshold Reviews, the Consolidated Annual Performance Evaluation Reports (CAPER),99

Public Housing Agency Plans, and the Risk Analysis contain specific procedures for pre- and 

post-award reviews. HUD officials say these tools have helped the agency target recipients for 

on-site reviews and improved Title VI compliance.100 

On processing FHA complaints, the Commission’s 1994 report found that HUD did not 

have a systematic approach that would ensure timely and consistent complaint management 

across all regional offices. Instead, a series of draft technical guidance memoranda contain the 

majority of the instructions for complaint processing. Hence, the Commission recommended that 

 

95 See HUD Interrogatory, pp. 16–17, for examples. Two of the six regulations HUD referenced were issued in 1989. 96 HUD Interrogatory, p. 17. 

97 USCCR, Federal Title VI Enforcement, p. 347. 

98 HUD Interrogatory, p. 18. 

99 CAPER’s civil rights–related components focus on how the jurisdiction’s Consolidated Plan programs and 

activities affect beneficiaries by race, ethnicity, and gender, as well as the actions taken during the program year to 

further fair housing. See HUD Interrogatory, p. 41. 100 HUD Interrogatory, p. 18. 
Staff Draft May 2004 125

HUD develop and publish a fair housing complaint processing manual that included current 

HUD policy on the necessary evidence to support a claim of discrimination under FHA.101 

HUD now indicates that when FHEO began FHA administrative enforcement, it was 

necessary to develop and issue new case processing standards. Thus, shortly after FHA became 

effective on March 12, 1989, FHEO started this process. Between November 9, 1989, and March 

17, 1992, headquarters FHEO issued 19 draft technical guidance memoranda addressing specific 

issues and procedures for processing FHA complaints. Where appropriate, the memoranda were 

incorporated into the Title VIII Complaint Intake, Investigation, and Conciliation Handbook,

issued in September 1995. Additional chapters and revisions to the handbook were published in 

November 1998. Since its issue, FHEO headquarters has used the handbook guidance in all inhouse training, FHA investigations, and intake analysis.102 A task force is planning an update to 

include latest case decisions. HUD also issues other documents, including a field manual, general 

FHA guidance materials, and several memoranda of understanding (MOUs) with other federal 

agencies for facilitating filing and investigation of housing discrimination complaints.103 

Among this section’s key points are: 

 HUD did not update its 1976 Title VI compliance and enforcement procedures manual. 

DOJ’s Title VI Complaint and Compliance Review Manual and the Legal Manual have 

replaced the 1976 manual. 

 HUD has specific procedures for pre-award reviews and post-award reviews established 

in the Civil Rights Threshold Reviews, Review of Consolidated Plan’s Consolidated 

Annual Performance Evaluation Reports, Public Housing Agency Plans, and the Risk 

Analysis. 

 HUD issued Title VIII Complaint Intake, Investigation, and Conciliation Handbook in 

September 1995, and additional chapters and revisions were published in 1998. HUD has 

issued numerous other documents, including a field manual, general FHA guidance 

materials, and several memoranda of understanding with other federal agencies for 

facilitating filing and investigation of housing discrimination complaints. 

Technical Assistance 

Although FHEO provided technical assistance seminars to Title VI recipients, the 

Commission’s 1996 report indicated that focus on Title VI was limited. The Commission advised 

FHEO to train recipients and HUD civil rights staff regularly. Moreover, technical assistance 

should include methods for achieving enforcement, and information on new and developing civil 

rights issues, especially changing case law, statutes, regulations, and policies affecting Title VI 

enforcement in HUD’s grant programs.104 

 

101 USCCR, Fair Housing Amendments Act Report, p. 222. 102 HUD Interrogatory, p. 19. 

103 See HUD Interrogatory, pp. 18–24, for examples of handbooks, manuals, memoranda of understanding, 

regulations, notices, and general Title VIII case processing guidance materials. 

104 USCCR, Federal Title VI Enforcement, pp. 350–51. 
Staff Draft May 2004 126

HUD now offers Title VI technical assistance based on DOJ guidance on an as-needed 

basis to headquarters, hubs, and field staff. FHEO has also offered to federal funding recipients 

technical assistance focusing on the implications of the Civil Rights Restoration Act. Generally, 

FHEO staff and staff in DOJ’s Coordination and Review Section offer training sessions that take 

place around the country. Training includes conducting on-site Title VI compliance reviews to 

encourage acquisition of practical experience.105 

On the certification of the laws of state and local fair housing agencies as substantially 

equivalent to FHA, the Commission emphasized in 1992 that without HUD’s technical 

assistance and financial support, many local agencies would reduce or, worse, eliminate their fair 

housing programs. This would make it more difficult for fair housing charging parties to receive 

local assistance and the full protection of FHA. The Commission recommended that HUD 

provide technical assistance to state and local jurisdictions that were not already in the federal 

fair housing system. To help, HUD needed to provide sustained and timely assistance with 

drafting laws that would meet a substantial equivalency review, assign staff to specific agencies 

to handle inquiries, provide legal advice on state and local proposed fair housing laws, and 

testify on behalf of an agency’s proposed law.106 These actions would increase the number of 

participants in FHAP. 

FHEO offers ongoing technical assistance to state and local jurisdictions whose laws are 

not significantly comparable to FHA. HUD hosts the FHEO National Policy Conference Forum 

every other year for interested agencies. For example, FHEO invited several agency 

representatives to its FY 2002 conference to learn more about bringing fair housing laws in line 

with FHA and to ask questions of HUD officials.107 FHEO also reviews agencies’ existing fair 

housing laws to determine if they satisfy FHA criteria.108 HUD also offers more specific or 

targeted assistance to agencies.109 Such help may include, for example, limited technical 

assistance for drafting fair housing laws. OGC provides legal analysis to FHEO regarding the 

adequacy of state or local fair housing laws, but the assistant secretary makes the final 

determination as to whether a specific agency meets the criteria set forth under FHA.110 At this 

time, FHEO says it does not testify on behalf of an agency’s fair housing law.111 

Among this section’s key points are: 

 Title VI technical assistance based on DOJ guidance is offered on an as-needed basis to 

headquarters, hubs, and field staff. Training includes conducting on-site Title VI 

compliance reviews to impart practical experience. 

 

105 HUD Interrogatory, p. 25. 

106 USCCR, Federal Fair Housing System, p. 33. 

107 HUD Interrogatory, p. 25. 

108 Section 810(f)(3)(A). See HUD Interrogatory, p. 25. 

109 In particular, see the regulations at 24 C.F.R. § 115.205 (2004). See HUD Interrogatory, p. 23. 

110 C.F.R § 115, subpart B. 

111 HUD Interrogatory, p. 26. The certification process is discussed in detail later in this chapter. 
Staff Draft May 2004 127

 FHEO offers ongoing technical assistance to provide information on certification and 

substantial equivalency to state and local jurisdictions whose laws are not significantly 

comparable to FHA. 

Education and Outreach 

In 1996, the Commission noted that FHEO had performed little Title VI community 

outreach and public education, having only prepared a Title VI “fact sheet” for dissemination to 

the public, and developed a Title VI education program for one public housing authority 

recipient. The Commission said that HUD should anticipate recipients’ outreach requirements 

and regularly solicit comments from (1) affected communities and funding recipients on FHEO’s 

Title VI enforcement efforts; (2) funding recipients on potential Title VI violations and HUD’s 

compliance expectations; and (3) affected communities and civil rights groups on protecting 

Title VI rights. HUD also must be forceful in public education, informing potential and actual 

participants, beneficiaries, and affected communities about their Title VI rights, including 

procedures for filing complaints. Furthermore, the 1996 report stated FHEO must ensure that 

funding recipients educate the public about their programs. Moreover, HUD should consider 

modeling its Title VI education and outreach efforts on that of the Fair Housing Initiatives 

Program (FHIP), which funded community and fair housing agencies’ varied education and 

outreach activities.112 

HUD now states that field office staff are primarily responsible for Title VI education and 

outreach activities, using a combination of printed and electronic media. Each hub and field 

office conducts its own education and outreach, and activities are targeted to the needs of its 

community.113 

One of HUD’s compliance expectations is that potential Title VI violations will be 

brought to its attention. FHEO receives referrals from recipients, particularly from public 

housing authorities, of potential discrimination complaints.114 HUD communicates compliance 

expectations to funding recipients in a number of ways to ensure awareness of Title VI rights and 

responsibilities. For example, FHEO headquarters office issues “Notices and Directives” to 

funding recipients, and to hub directors, program branches, and program centers in the regions. It 

also responds to recipients’ regular requests for clarification. Further, funding recipients receive 

periodic training sessions on Title VI compliance expectations. Other opportunities to provide 

education and outreach occur during compliance reviews and complaint investigations, and when 

FHEO staff provide feedback to recipients after reviewing their plans and other documents.115 

FHEO has public campaigns to reach minority and disabled communities. For example, 

FHEO became aware that some farm workers are reluctant to engage in the federal complaint 

 

112 USCCR, Federal Title VI Enforcement, p. 350. 

113 HUD Interrogatory, p. 27. 

114 Ibid., p. 29. FHEO now states that this is incorrect. It says: “FHEO receives discrimination complaints from 

beneficiaries, in particular residents of public and assisted housing and applicants in such housing. Additionally, 

organizations contact FHEO about policies and practices that they view as discriminatory.” See Peoples letter, p. 6. 115 HUD Interrogatory, pp. 28–29. 
Staff Draft May 2004 128

process. The office decided that Title VI compliance enforcement to the farm worker community 

must have a strong public education component. The HUD regions participating in this campaign 

targeted certain geographical areas for outreach in FY 2004. To gauge the effectiveness of this 

campaign, HUD plans to compare post-campaign complaint data from these geographical areas 

with those from prior years.116 HUD also points out that its translation service translated fair 

housing materials, including complaint-related documents, into non-English languages, such as 

Spanish, Vietnamese, Chinese, Korean, and distributed them to underserved rural locales and 

areas with high concentrations of minorities.117 Moreover, agency officials say that HUD has 

established working relationships with minority and disability advocacy organizations, including 

those serving Native Americans, Alaska Natives, and farm workers, and the independent living 

centers throughout its regions. FHEO’s public education campaign to reach the colonias, Native 

Americans has had mixed success, while anecdotal evidence suggests that the campaign for 

recipients and beneficiaries in the disability community has been more successful.118

HUD involves local advocacy and civil rights groups in education and outreach efforts. 

During compliance reviews, for example, HUD officials confer with these groups about the civil 

rights performance of the recipient in question. Agency officials say that through an outreach 

campaign, hundreds of organizations have been contacted about the protections of the federal fair 

housing law, although Title VI was not its specific focus. In addition, FHEO has ongoing 

discussions with local legal assistance agencies about Title VI requirements.119

In 1996, the Commission recommended that HUD model its Title VI education and 

outreach efforts on that of FHIP. The Commission now learns that FHIP does not have one 

education and outreach model. Its Education and Outreach Initiative encourages grantees to 

establish programs tailored to the local community. Educational activities funded by the 

initiative may be national, regional, local, or community-based in scope and include myriad 

activities, such as developing education materials, providing fair housing training, partnering 

with Community Development and Block Grant recipients to conduct analysis of impediments to 

housing choice, and providing housing counseling and classes. HUD itself uses a number of 

education and outreach models, for example, a Spanish-language electronic slide presentation on 

FHA and nondiscrimination requirements. Another example is HUD’s cross-program model 

developed jointly with FHEO and other groups. For instance, FHEO, the state of Illinois, and the 

offices of Public and Indian Housing have worked together to develop partnerships and plans to 

allow Housing Choice Vouchers to be used throughout the underserved northern area of 

Illinois.120 

 

116 Ibid., p. 30. 

117 In June 2003, HUD launched a Spanish-language Web site, espanol.hud.gov, to increase minority access to 

HUD’s homeownership and educational materials. See U.S. Department of Housing and Urban Development, 

“Martinez Launches New Spanish-Language Web site Espanol.hud.gov to Increase Housing Education and 

Homeownership Opportunities,” news release, June 19, 2003, <http://www.hud.gov/news/release.cfm?content= 

pr03-074.cfm> (last accessed May 6, 2004). 

118 HUD Interrogatory, p. 29. 

119 Ibid. 

120 Ibid., p. 27. See ibid., for a full list of the types of activities that FHIP funds. See Peoples letter, p. 6. 
Staff Draft May 2004 129

HUD also draws on internal and external technological resources to aid in education and 

outreach. FHEO’s Web site contains much useful information and downloadable documents, 

including fair housing administrative law decisions.121 As to use of external technological 

resources, HUD explains that fair housing groups, academic institutions, and other private and 

public organizations conduct research and post findings on their Web sites. HUD says it uses the 

information, and also publicizes the findings on its Web site to educate the public. Even HUD’s 

complaint decisions are available on the Web sites of different fair housing organizations, 

including FAIRHOUS, a Westlaw database searchable by key terms, thus furthering the public’s 

awareness about the agency’s enforcement efforts.122 Yet another way in which HUD taps into 

external technological resources for education and outreach is the FHEO partnership with the 

National Fair Housing Alliance and the Ad Council to create Spanish and English radio and print 

advertisements to inform members of the public about their fair housing rights and 

responsibilities.123 A second advertisement on predatory lending is under production. Finally, 

Fair Housing Accessibility FIRST, a HUD-sponsored initiative to promote compliance with FHA 

design and construction requirements, provides materials online and offers telephone or online 

assistance to persons with questions about constructing multifamily housing that is accessible to 

people with disabilities.124 This initiative began in FY 2002 and is ongoing.125 

Among this section’s key points are: 

 Field staff are responsible for education and outreach. 

 HUD uses a variety of approaches for education and outreach to reach recipients, affected 

communities, advocacy and community groups, and legal assistance agencies. 

 FHIP’s Education and Outreach Initiative encourages grantees to establish education and 

outreach programs targeted at the local communities. 

 HUD draws on internal and external technological resources to assist in education and 

outreach. 

Complaint Processing 

The Commission’s 1994 report showed that for a vast majority of fair housing cases, 

HUD did not make a determination within the 100-day congressional benchmark. Aged cases 

were undesirable as they were costlier for the disputing parties. It also reported wide variation in 

 

121 Peoples letter, p. 6. See HUD Interrogatory, pp. 30–31, for examples of downloadable documents. 

122 HUD Interrogatory, p. 30; Peoples letter, p. 7. 

123 “The Ad Council is a private, non-profit organization that marshals volunteer talent from the advertising and 

communications industries, the facilities of the media, and the resources of the business and non-profit communities 

to deliver critical messages to the American public. The Ad Council produces, distributes and promotes thousands of 

public service campaigns on behalf of non-profit organizations and government agencies in issue areas such as 

improving the quality of life for children, preventive health, education, community well being, environmental 

preservation and strengthening families.” The Ad Council, “About Ad Council,” <http://www.adcouncil.org/about> 

(last accessed Dec. 23, 2003). 

124 HUD Interrogatory, p. 30. 

125 Kirk I. Perry, senior program analyst, Office of Policy and Program Evaluation, U.S. Department of Housing and 

Urban Development, interview, Mar. 5, 2004 (hereafter cited as Perry interview, Mar. 5, 2004). 
Staff Draft May 2004 130

the methods regional offices used in case management and their inability to complete timely 

investigations. Hence, the Commission advised HUD to re-examine procedures and 

appropriately institute new ones to ensure timely complaint processing without loss of quality. 

Moreover, the Commission said that each region’s overall performance should be evaluated and 

identified inadequacies corrected.126 

In the last several years, FHEO has rendered aged-case reduction a top priority.127 The 

Commission’s own investigation identifies that a strategic objective, “resolve discrimination 

complaints on a timely manner,” includes two indicators on this matter. These are that the 

percentage of fair housing complaints over 100 days will decrease two percentage points from 

the FY 2003 level of the HUD inventory; and that the percentage of fair housing complaints over 

100 days will decrease by two percentage points from the FY 2003 level of the inventory of 

substantially equivalent agencies.128 The FHEO AMP incorporates these two indicators, and adds 

a third, “seventy-five percent of all non-complex cases will be closed within 100 days.”129 HUD 

officials also indicate that staring May 2004, HUD’s Fair Housing Training Academy (FHTA) 

will provide continuing professional fair housing training and certification for current and future 

FHAP agency staff to ensure timely processing of fair housing complaints130 

Further, FHEO headquarters staff perform continuous case activity monitoring to 

determine the extent of reduction in aged cases, and to ensure timely processing of newly 

assigned cases. Quarterly, hub directors meet with FHEO headquarters senior staff to review 

progress in aged case reduction.131 FHEO also provides technical assistance to field offices, as 

necessary, to ensure timely and quality case processing. According to HUD, the Title VIII statute 

and implementing regulations state that investigation of fair housing complaints should be 

completed within 100 days of filing unless it is impracticable.132 The agency says that it has 

made every effort to complete investigations within 100 days of receipt, but that there are a large 

number of complex cases which often require more than 100 days to complete.133 Cases may 

take longer when they involve many witnesses, voluminous evidence, or complex or novel 

 

126 USCCR, Fair Housing Amendments Act Report, pp. 223–24. 127 HUD Interrogatory, p. 31. 

In the interim rule published in 1996, HUD amended regulations governing fair housing complaint processing. In 

the supplementary information concerning the respondent’s right to request a subpoena, it specifically cites the 

Commission’s report, The Fair Housing Amendments Act of 1988: The Enforcement Report. The report discussed 

FHEO staff’s explanations on why it was not possible to expect all cases to be investigated and a determination 

made within 100 days. The Commission advised HUD to re-examine procedures, staffing, and resources, and 

institute changes that would result in timely processing of cases. As a result, HUD conformed in investigative 

practices to those of other federal agencies. Office of the Assistant Secretary for Fair Housing and Equal 

Opportunity; Revision of HUD’s Fair Housing Complaint Processing, 61 Federal Register 41,480 (1996) (to be 

codified at 24 C.F.R. pt. 103). 

128 HUD, APP FY 2004, p. 49. 

129 U.S. Department of Housing and Urban Development, “FY 2004 Management Plan: Office of Fair Housing and 

Equal Opportunity,” p. 4. 

130 HUD Interrogatory, p. 63. This is further discussed later in the chapter. 

131 HUD Interrogatory, p. 31. 

132 24 C.F.R. § 103.225 (2004). 

133 HUD Interrogatory, p. 31. 
Staff Draft May 2004 131

matters of law.134 Complex cases have these characteristics: (1) design and construction, (2) 

discriminatory financing, (3) steering, (4) reasonable accommodation, (5) discriminatory 

brokerage services, (6) redlining, (7) refusal to provide insurance, (8) discriminatory terms and 

conditions for making home loans, and (9) discriminatory appraisals of real properties.135 

At the beginning of FY 2003, FHAP agencies were processing about 64.5 percent of all 

(HUD and FHAP) open cases (complex and non-complex) and HUD, 35.5 percent. The average 

age of HUD’s open cases was 143 days, compared with FHAP agencies’ 165 (see table 5.2).136

Thirty percent of HUD’s open cases were aged (over 100 days old) compared with FHAP 

agencies’ 44.7 percent. The average age of HUD’s aged cases was 400 days, compared with 

FHAP agencies’ 317.

TABLE 5.2 

HUD and FHAP Aged Cases (over 100 days old), FY 2003 

 Total 

open cases

Average 

age of 

open cases 

Percent of 

aged cases

Average 

age of 

aged cases 

HUD 1,577 143 30.0% 400 

FHA 2,861 165 44.7% 317 

Source: Carolyn Peoples, assistant secretary, Office of Fair Housing and Equal Opportunity, U.S. 

Department of Housing and Urban Development, letter (attachment), May 18, 2004, p. 8.

As to the Commission’s previously stated concern on the wide variation in the methods 

that regional offices use in case management, FHEO has established standard procedures in 

Handbook 8024.01, Title VIII Intake, Investigation, and Conciliation Handbook that field staff 

use for investigation and disposition. Each FHEO regional director has limited discretion to tailor 

procedures to local intake needs. However, standard procedures in the Consolidated HUD 

Hearing Procedures for Civil Rights Matters govern disposition of FHA discrimination 

charges.137 Further, OGC issues memoranda on internal procedures for FHA cases to regional 

counsel; and its headquarters Office of Fair Housing Enforcement Division has desk officers 

assigned to assist specific regional counsel offices. HUD also sought to standardize processing 

through OGC training. During training, OGC provides current information on FHA enforcement 

policies and procedures to all fair housing attorneys.138 HUD has not, however, assessed if the 

training reduces the wide variation in the methods regional offices use in case management.139

 

134 Peoples letter, p. 7. 

135 Ibid. 

136 This paragraph focuses on HUD’s non-complex open cases. 

137 24 C.F.R. Part 180 contains the rules and procedures for administrative law judges dealing with discrimination 

charges. See HUD Interrogatory, p. 32. 

138 HUD Interrogatory, p. 32. 

139 Perry interview, Mar. 5, 2004. 
Staff Draft May 2004 132

FHA authorized the HUD Secretary to file a complaint on her or his own initiative.140

The HUD Secretary delegated this authority to the FHEO assistant secretary.141 A secretaryinitiated complaint allows HUD to pursue cases that involve a pattern or practice of 

discrimination, and as such, is a valuable enforcement tool. The Commission’s 1994 report, 

however, found that secretary-initiated complaints were underutilized, and recommended that 

HUD develop secretary-initiated complaints, issue guidance or regulations detailing the subjects 

appropriate for such complaints, and increase substantially the staff and resources for this 

purpose.

142

The secretary-initiated complaint remains a little used tool. The Secretary, through the 

FHEO assistant secretary, filed only four such complaints over the six-year period between FY 

1998 and 2003; one each FY 2000 and 2002, and two in FY 2003.143 Furthermore, HUD 

eliminated separate funding and staff for secretary-initiated complaints.144 The National Council 

on Disability called on HUD to make greater strategic use of secretary-initiated complaints as a 

part of its comprehensive effort to more effectively enforce FHA.145 FHEO states that it plans to 

set up a systemic investigations unit to improve enforcement capability.146 The FHEO assistant 

secretary has endorsed the systemic investigations unit, pending HUD secretary approval.147 The 

unit will have dedicated resources to identify, coordinate, and conduct the investigation and 

conciliation of systemic complaints, complaints involving novel and/or complex issues, and 

high-profile complaints. In addition, the unit will propose and coordinate secretary-initiated 

investigations and manage secretary-initiated complaints.148 

The Commission recently analyzed Title VI complaints filed with HUD and FHA 

complaints filed with HUD and with the FHAP agencies combined.149 HUD received far fewer 

Title VI complaints than FHA complaints; between FY 1999 and 2002, Title VI complaints 

made up between 10.6 to 14.8 percent of the agency’s combined Title VI and FHA complaints 

(excluding FHAP agencies’ FHA complaints).150 Title VI complaints increased from 239 in FY 

1999 to 284 in FY 2000, thereafter tapering to 276 in FY 2001, before rising to 375 in FY 

2002,151 attaining an average annual increase of 5.2 percent. 

 

140 42 U.S.C. § 3610(e) (2004). USCCR, Fair Housing Amendments Act Report, p. 11. 141 24 C.F.R. § 103.400 (2004). USCCR, Fair Housing Amendments Act Report, p. 163. 142 USCCR, Fair Housing Amendments Act Report, p. 229. 143 Peoples letter, p. 8. 

144 U.S. Commission on Civil Rights Document Request #5. 

145 National Council on Disability, Reconstructing Fair Housing, Nov. 6, 2001, p. 12. 146 HUD Interrogatory, p. 64. 

147 Perry interview, Mar. 5, 2004. 

148 HUD Interrogatory, p. 64. 

149 As part of its data request, the Commission also sought data on the resolution of these complaints. To date, this 

information has not been received. 

150 Data calculated from U.S. Commission on Civil Rights Document Request #20. The figures for FY 1999–2002 in 

percentages are 10.6, 13.3, 14.1, and 14.8, respectively. Title VI complaint data for FY 1998 were incomplete in 

HUD’s database, TEAPOTS, and thus excluded in this analysis. Also note that FHAP complaints were excluded in 

this instance as the focus here is on Title VI and FHA complaints filed with HUD. 151 U.S. Commission on Civil Rights Document Request #20. 
Staff Draft May 2004 133

As to FHA complaints, between FY 1998 and 2002, the combined number of HUD and 

FHAP FHA complaints filed increased yearly, the greatest being 13.6 percent in FY 2000 (see 

table 5.3). In regard to HUD’s FHA complaints, of the FHA complaints (HUD and FHAP 

combined) received, HUD’s share was generally about a third, hovering between 27.9 to 36.6 

percent, with FHAP agencies receiving the majority share.152 During the review period, HUD’s 

FHA complaints showed a fluctuating trend. Meanwhile, complaints filed with FHAP increased 

every year. 

It is helpful to view HUD and FHAP FHA complaints in a larger context. The National 

Fair Housing Alliance maintains records on complaints filed with the organization and collects 

similar data from HUD, FHAP, and DOJ. The combined total from these sources for 2002 was 

25,246. According to the alliance’s president, Shanna Smith, this figure “is less than one percent 

of the estimated incidence of illegal housing discrimination that occurs each year in the United 

States.”153 Persons who do not know their rights and where to complain are not likely to do so.154

Combined HUD and FHAP 2002 complaints made up 30.3 percent of the combined total. 

TABLE 5.3 

HUD and FHAP (all FHAP agencies) Title VIII Complaints, 1998–2002

 

 

Year-to-year 

change

Fiscal 

year HUD FHAP

Combined

HUD and

FHAP 

% HUD

complaints of

HUD and FHAP

combined HUD FHAP 

Combined

HUD and 

FHAP 

1998 2,025 3,793 5,818* 34.8% -- -- --

1999 2,248 3,891 6,139 36.6% 11.0% 2.6% 5.5%

2000 2,142 4,831 6,973 30.7% -4.7% 24.2% 13.6%

2001 1,959 5,051 7,010 27.9% -8.5% 4.6% 0.5%

2002 2,538 5,111 7,649 33.2% 29.6% 1.2% 9.1%

 

Average annual change: 32.7% 6.8% 8.1% 7.2%

*HUD provided a figure of 5,918, but 2,025 plus 3,793 sum to 5,818. 

Source: U.S. Commission on Civil Rights Request #20. 

Among this section’s key points are: 

 Hub and field staff are primarily responsible for processing complaints. 

 

152 Data calculated from U.S. Commission on Civil Rights Document Request #20. The figures for FY 1998–2002 in 

percentages are 34.8, 36.6, 30.7, 27.9, and 33.2, respectively. 

153 National Fair Housing Alliance, “Less than One Percent of Illegal Housing Discrimination Reported, According 

to New Report by National Fair Housing Alliance,” press release, Apr. 16, 2003. 154 A 2001 George Washington University study on segregation in Washington, D.C., found that one of the main 

reasons that persons who suffered discrimination did not take legal action was that they thought nothing would come 

of it. A 2002 HUD study, “How Much Do We Know? Public Awareness of the Nation’s Fair Housing Laws,” 

concluded that one in five people who believed they experienced housing discriminating did not know what their 

rights were or where to complain. 
Staff Draft May 2004 134

 HUD has made reducing aged complaint cases a priory. It has created two indicators in 

the APP on this issue. FHEO has adopted these two indicators in its AMP and created a 

third indicator. 

 At the beginning of FY 2003, 30 percent of all HUD’s open case inventory and 44.7 

percent of FHAP’s, were aged. The average age of aged cases for HUD and FHAP is 400 

and 317, respectively. 

 HUD does not maximize the use of secretary-initiated complaints as a strategy against 

broad-based discrimination. Over a six-year period, only four such complaints were filed. 

 FHEO has established standard complaint in Handbook 8024.01, Title VIII Intake, 

Investigation, and Conciliation Handbook, and Consolidated HUD Hearing Procedures 

for Civil Rights Matters set forth standard procedures that govern disposition of FHA 

charges of discrimination. 

 FHA complaints made up the bulk of HUD’s complaints. The agency received about onethird of all (HUD and FHA combined) FHA complaints, while FHAP agencies received 

the other two-thirds. 

 The total number of complaints filed each year with HUD, FHAP agencies, DOJ, and the 

National Fair Housing Alliance make up less than 1 percent of the estimated acts of 

illegal housing discrimination that occur annually. 

Compliance Reviews 

The Commission’s 1996 report found that HUD conducted numerous Title VI pre-award 

reviews. The small number of work years devoted to them, however, suggested that the reviews 

were not thorough.155 The Commission advised FHEO to concentrate on a quality pre-award 

review process that included examination of (1) implementation and enforcement policies and 

documentary information on specific compliance activities; (2) statistical data on program and 

activity participation rates by racial/ethnic minorities; (3) application or interview materials 

related to program or participation acceptance or selection; (4) the demographic make-up of the 

program’s affected community or pool of potential participants; (5) statistical data on application 

rejection rates; and (6) community outreach and public education materials. The Commission 

understood that inadequate resources may not permit quality pre-award review of all applicants. 

Thus, HUD should develop alternative strategies that would permit meaningful and efficient preaward previews on as many applicants as possible. The Commission also made clear that such 

strategies only serve as a secondary alternative to the optimal pre-award review process 

proposed.156 

HUD now explains that civil rights enforcement is an agencywide mission; FHEO and 

the program office share responsibility for conducting pre-award reviews.157 There are two broad 

categories of grants, competitive and noncompetitive, each with its respective pre-award review 

 

155 A work year is equivalent to 2,000 hours. It refers to the total time spent on an activity, such as pre-award review, 

within a fiscal year. Perry interview, Mar. 5, 2004. 

156 USCCR, Federal Title VI Enforcement, pp. 347–48. 157 HUD Interrogatory, p. 40. 
Staff Draft May 2004 135

process; focus here is on competitive grants. Agency officials report that all applicants applying 

for competitive program funds through the Super Notice of Funding Availability (NOFA) or 

stand-alone NOFA must pass civil rights threshold requirements or pre-award reviews that 

FHEO and HUD program offices conduct. Applicants are ineligible if they have an outstanding 

letter of noncompliance under Title VI as of the application deadline stated in the individual 

program NOFAs. Moreover, all noncompliance issues must be resolved through a voluntary 

compliance agreement, conciliation agreement, consent order or consent decree, a judicial ruling, 

or a HUD ALJ’s decision exonerating the respondent of any discrimination allegations. The preaward review process requires that FHEO, in coordination with DOJ’s Civil Rights Division, 

issue quarterly a Civil Rights Violations List that identifies organizations that have outstanding 

letters of findings.158 HUD’s Grants Management Center and Program Office will not consider 

any applicant on the Civil Rights Violations List; and will inform the applicant of its ineligibility 

under NOFA.159 

The Commission reviewed HUD’s pre-award review data.160 Between FY 1998 and 

2001, pre-award on-site reviews composed about 1.7 to 3.3 percent of all pre-award reviews (see

table 5.4). The percentage of noncompliance findings was relatively small, no larger than 5 

percent during this period. The trend in the total number of pre-award reviews conducted during 

the period is checkered, ranging from a low of 2,971 to a high of 3,980. 

TABLE 5.4 

HUD Title VI Pre-Award Reviews

Fiscal 

year 

Total 

pre-award 

reviews 

On-site 

reviews

Desk-audit 

reviews

Percent 

not in 

compliance

Percent 

on-site 

reviews

1998 3,352 111 3,241 5% 3.3%

1999 3,758 82 3,676 1% 2.2%

2000 2,971 81 2,890 1% 2.7%

2001 3,980 68 3,912 1% 1.7%

Source: U.S. Department of Housing and Urban Development, Civil Rights Workload Performance Data for FY 

1998–FY 2001.

The Commission reported in 1996 that FHEO did not perform post-award desk-audit 

reviews of Title VI HUD funding recipients. The Commission said well-executed post-award 

desk-audit reviews could be as comprehensive as post-award on-site reviews, and done more 

quickly and economically. Hence, FHEO needed to use preliminary post-award desk-audit 

reviews before committing staff to costlier on-site compliance reviews. Moreover, post-award 

 

158 The Civil Rights Violation List is on HUD’s internal Web site. A letter of finding is a finding of noncompliance 

following a compliance review in this context. Peoples letter, p. 8. 

159 HUD Interrogatory, pp. 37–38. 

160 Pre-award and post-award review data are extracted from relevant pages of CRIPs that HUD sent in response to 

the Commission’s request for such data. DOJ’s new reporting format, effective in FY 2003 for reporting on CRIP 

activities in FY 2002, changed the classificatory categories for pre-award and post-award activities. Because of the 

incomparability of pre-award review classificatory categories between FY 1998 and 2001 and FY 2002, and little 

assurance that information in pre-award and post-award analysis in the new and old formats are comparable, FY 

2002 data are excluded from this analysis. 
Staff Draft May 2004 136

desk-audit reviews needed to (1) identify deficiencies in recipients’ delivery of program services 

to potential and actual beneficiaries, (2) investigate allegations of discriminatory barriers to 

program participation, (3) evaluate the accessibility of recipients’ public education and outreach 

programs, and (4) identify recipients in need of technical assistance or further on-site 

investigation.161 

HUD now says it has established four post-award desk-audit review processes that 

contribute information for Title VI compliance reviews. The first is local FHEO staff review of 

the Consolidated Annual Performance and Evaluation Reports of all local and State Consolidated 

Plan jurisdictions. HUD’s review and approval of Public Housing Agency (PHA) plans is the 

second Title VI post-award desk-audit process. HUD states that the housing plans include PHA 

certification of compliance with civil rights laws and with FHA’s requirements to affirmatively 

further FHA objectives. The Civil Rights Limited Monitoring Review Protocol is the third 

process. In 1999, FHEO and its headquarters program offices developed joint protocols wherein 

program office evaluation units would conduct civil rights–related front-end and limited 

monitoring reviews. The Civil Rights Limited Monitoring Review Protocol thus promotes civil 

rights enforcement as an agencywide mission. Risk analysis is the fourth process. FHEO has 

developed the Risk Analysis Data Management System, implemented in all FHEO field offices, 

for predicting recipients’ civil rights–related risk potential. High-risk recipients require either onsite program monitoring or compliance reviews under Title VI or other civil rights statutes; 

moderate-risk recipients may also be monitored on-site, depending on travel and staff 

resources.162 

The Commission’s 1996 report also found that HUD limited post-award on-site 

compliance reviews to public housing authority recipients. HUD should conduct post-award onsite compliance reviews of all grant recipients on a rotating basis, at least once every three years. 

In addition, during post-award on-site compliance reviews, the Commission said FHEO should 

ensure that (1) the recipient’s facility be investigated thoroughly to identify potentially 

discriminatory housing patterns or potentially discriminatory services; (2) funding recipient 

officials, communities affected by the recipient’s programs or activities, program participants or 

beneficiaries, and interviewers responsible for assisting applicants’ participation be interviewed; 

(3) compliance policies be ascertained and examined carefully; (4) statistical data on 

participation and rejection rates be examined; (5) applications for assistance be reviewed to 

detect possible barriers to participation; and (6) recipient’s efforts to educate the public and 

communities affected by programs and activities be evaluated, especially efforts to provide 

program accessibility for limited-English-proficient communities. Finally, the Commission said 

FHEO should evaluate both post-award review processes to ensure ready identification of 

funding recipients not in compliance with Title VI.163 

HUD now states that it has more than 40,000 federal assistance recipients and that current 

staffing and funding are inadequate for post-award on-site compliance review of all grant 

recipients on a rotating triennial basis. Instead, since the Commission’s 1996 report, HUD has 

 

161 USCCR, Federal Title VI Enforcement, p. 348. 

162 HUD Interrogatory, p. 41. 

163 USCCR, Federal Title VI Enforcement, pp. 348–50. 
Staff Draft May 2004 137

concentrated on compliance reviews of certain categories of PHAs and a small select number of 

recipients in each hub. Rigorous post-award review of a significant number of recipients is a 

strategy key to civil rights enforcement. HUD’s criteria for selecting a recipient for a compliance 

review include complaints against the recipient, outcomes of risk analysis, whether litigation has 

been filed, and hub resources. Agency officials emphasize that an on-site investigation is 

comprehensive. It encompasses, for example, a review of racial and ethnic data for each 

development or facility; interviews with key staff, beneficiaries, and community advocates; and 

reviews of tenant files for waiting times. FHEO says it has conducted a limited number of 

reviews of recipient’s efforts to provide program accessibility for limited-English-proficient 

communities, and informs the Commission that questions relating to this coverage would be 

added to future reviews.164 

The Commission’s 2004 examination of HUD’s post-award review data for FY 1998–

2001 shows the number of reviews completed grew sizably every year with one exception, FY 

1999 (see table 5.5), resulting in an average yearly increase of 87.7 percent for reviews 

completed.165 The percentage of post-award reviews resulting in noncompliance is low with 5 

percent being the highest for the review period. Post-award reviews pending after 180 days had 

declined considerably. Although these findings are positive, it should be kept in mind that they 

are based on HUD’s limited post-award compliance reviews—a small number of recipients in 

each hub and select PHAs. 

TABLE 5.5 

HUD Title VI Post-Award Reviews 

Fiscal 

year 

Post-award 

reviews 

completed

Desk audit

and on-site 

reviews

Desk-audit 

reviews only

Percent 

desk-audit 

reviews only

Percent 

not in 

compliance 

Still pending 

after 180 days

1998 2,755 981 1,774 64.4% 1% 116

1999 970 772 198 20.4% 5% 21

2000 3,480 1,995 1,485 42.7% 2% 39

2001 5,890 4,015 1,875 31.8% 1% 1

Note: Post-award reviews include monitoring reviews by field offices and compliance reviews by hubs. The total number of postaward reviews completed in each fiscal year included those initiated in previous years. 

Source: U.S. Department of Housing and Urban Development, Civil Rights Workload Performance Data for FY 1998–FY 2001.

 Among this section’s key points are: 

 HUD has made civil rights enforcement an agencywide mission; FHEO and program 

offices now share enforcement responsibility through compliance reviews and program 

monitoring, respectively. 

 HUD has established four processes that contribute information to post-award 

compliance reviews. 

 

164 HUD Interrogatory, pp. 43–44. 

165 The total number of post-award compliance reviews completed combined field offices’ monitoring reviews and 

hub offices’ compliance reviews, and included carry-overs from previous years. See U.S. Department of Housing 

and Urban Development, “FY 2000 Civil Rights Workload and Performance Data (Federally Assisted Programs).” 
Staff Draft May 2004 138

 HUD concentrated compliance reviews on some categories of PHAs and a small select 

number of recipients in each hub due to lack of resources. 

 Pre-award reviews and post-award reviews show average yearly increase over the 

respective review periods. 

Staff Training 

FHA 

In 1992, the Commission advised HUD to improve staff training. It stated that 

headquarters and field staff tasked to assist state and local agencies seeking certification in the 

FHAP were inadequately trained on the federal requirements for complaint processing. The 

Commission recommended that HUD provide formal training to them on a priority basis that 

included instruction on the criteria the agency used to determine “meaning and intent” of state 

and local laws.166 By the time the Commission issued its 1994 report, training for FHEO staff 

improved, but was sporadic and uneven, and the training budget varied enormously from year to 

year. Training generally consisted of national or regional sessions of a few days’ duration. 

Regional offices were mostly left to provide on-the-job training for their staff without national 

goals or standards for guidance. The Commission therefore recommended that HUD implement 

a comprehensive approach to training new and continuing FHEO staff that included clearly 

defined training goals and adequate budgets. The Commission also encouraged HUD to explore 

arrangements for ongoing professional training for regional hub and field office staff using 

educational resources available at local law schools and paralegal training programs.167 

Extreme fluctuations in FHA enforcement funding levels from 1997 to the present have 

not allowed FHEO to implement a comprehensive approach to FHA training for new and 

continuing FHEO staff.168 The Commission’s current analysis of FHA training funds for FY 

1998–2003 confirms wide fluctuations, most notably since FY 2000.169 Nevertheless, HUD says 

training continues with existing resources. For example, between FY 1998 and 2000, HUD 

indicates that it contracted with the John Marshall Law School Fair Housing Legal Support 

Center of Chicago to provide FHA investigative and testing skills training for FHEO 

headquarters and regional field office staff. In 2001, HUD charged FHEO headquarters Office of 

Enforcement with planning, designing, and conducting Title VIII staff training using funds from 

HUD’s Fair Housing Training Academy (FHTA). In spring 2002, FHEO staff designed a “Title 

VIII Basic Investigator Training” of several days’ duration. In fall 2002, FHEO staff submitted a 

training plan for FY 2003 to provide basic investigative training and conciliation skills training 

to new staff. This plan was aborted as a result of the budget constraints at HUD’s training 

academy. FHEO located sufficient funding for a shortened training program.170 

 

166 USCCR, Federal Fair Housing System, p. 33. 167 USCCR, Fair Housing Amendments Act Report, p. 222. 168 HUD Interrogatory, p. 48. 

169 See U.S. Commission on Civil Rights Document Request #2. 170 HUD Interrogatory, pp. 46–47. 
Staff Draft May 2004 139

Recent HUD training includes a five-day course titled “Overview of Title VIII” and a 

three-day course titled “Title VIII Conciliation Skills.” Examination of the content of “Overview 

of VIII” offers a sense of coverage of the subject area. Topics usually discussed include the 

purpose of the statute and the implementing regulations, protected classes, the elements of 

jurisdiction, First Amendment issues, statutory exemptions, theories of discrimination and 

defenses, special familial status issues (such as steering and nongovernmental occupancy 

standards); special disability issues (such as reasonable modifications, reasonable 

accommodations, and the accessibility requirements); and Section 818 issues (such as 

harassment, intimidation, retaliation, and sexual harassment).171 Other VIII training opportunities 

for staff include fair housing and Title VI training that OGC offers to fair housing attorneys and 

regional counsel.172 In addition, in March 2003, HUD sponsored its first training specifically 

geared to attorneys who are litigating cases for FHAP agencies. HUD plans a similar training in 

2004.173 

Beginning in May 2004, HUD’s FHTA will offer continuing professional fair housing 

training and certification for current and future FHAP agency staff. This training is intended to 

ensure that fair housing complaints are processed consistently and timely and that all program 

participants receive similar guidance. FHTA certification signifies nationally recognized and 

respected credentials for fair housing enforcement and investigation.174 

Title VI 

The Commission’s 1996 report found that only a small percentage of training was 

devoted to Title VI implementation and enforcement responsibilities and activities. Hence, the 

Commission advised HUD to provide FHEO and recipients’ staff formal training on Title VI 

enforcement and compliance. The training should include but not be limited to (1) Title VI 

nondiscrimination requirements in HUD programs, (2) the nexus between Title VI and other civil 

rights enforcement provisions relevant to ensuring nondiscrimination in federally funded 

activities, and (3) the nexus between Title VI and a particular program’s objectives and 

administration.175

HUD says OGC and FHEO, and DOJ’s Coordination and Review Section staff provide 

training on Title VI.176 Each training session lasts a week. Training focuses on the scope of Title 

VI, theories of discrimination, the impact of the Civil Rights Restoration Act, interviewing 

techniques, the use of statistics including sampling, and procedures of document control. In 

addition, emphasis is placed on writing skills related to interviews, the structure of the letters of 

finding, and the preparation and monitoring of legally sufficient Voluntary Compliance 

Agreements. HUD officials state that in FY 2003, approximately 25 percent of staff training was 

related to Title VI. Only two of the six years under review, FY 2001 and 2002, showed a Title VI 

 

171 Ibid., p. 49. 

172 Ibid., p. 47. See ibid., p. 49, for topics covered in “Title VIII Conciliation Skills.” 173 Ibid., p. 63. 

174 Ibid. 

175 USCCR, Federal Title VI Enforcement, p. 351. 176 HUD Interrogatory, p. 48. 
Staff Draft May 2004 140

training budget with amounts of $33,192 and $32,250, respectively,177 a stark contrast to funding 

for Title VIII in regard to annual availability of funds and funding level. 

Among this section’s key points are: 

 Inadequate and fluctuating training funds prohibit HUD from developing a 

comprehensive training system, but the agency continues to provide some training with 

its limited resources. 

 OGC and FHEO, and DOJ’s Coordination and Review Section staff provide training on 

Title VI. 

 OGC offers training to fair housing attorneys and regional counsel. 

 HUD’s Fair Housing Training Academy will offer in May 2004 continuing professional 

fair housing training and certification for current and future FHAP agency staff. FHTA 

certification signifies nationally recognized and respected credentials for fair housing 

enforcement and investigation. 

Oversight and Quality Assurance 

The Commission’s 1996 report found that HUD did not institute a uniform system for 

monitoring and evaluating Title VI compliance activities of state recipients in state and locally 

administered programs, such as Community Development Block Grant programs. Thus, it 

recommended that FHEO establish and implement such a system. As part of the monitoring 

system, FHEO must require state and local governments to submit methods of administration 

demonstrating how they intend to ensure recipient compliance with Title VI. Accordingly, the 

methods of administration should include (1) a specific public outreach and education plan for 

notifying subrecipients of Title VI requirements; (2) a training program for state and local 

program staff and subrecipients regarding HUD’s nondiscrimination policies and procedures; (3) 

procedures for processing complaints, notifying the funding agency, informing beneficiaries of 

their rights; (4) a program that assesses and reports periodically on the status of Title VI 

compliance that involves more than merely a checklist of assurances; and (5) detailed plans for 

bringing discriminatory programs into compliance. Furthermore, FHEO should (6) review the 

Title VI compliance policies and activities of state and local government recipients; and (7) 

monitor and oversee states’ and local agencies’ data collection and analysis program.178 

FHEO has established and implemented an oversight and monitoring program to 

systematically evaluate Title VI policy and compliance activities—the Risk Analysis Data 

Management System, discussed earlier. The agency does not require recipients to indicate their 

plans for training their staff and subrecipients on how to administer programs according to Title 

VI. FHEO requires state and local jurisdictions, as part of its consolidated planning process, to 

comprehensively address fair housing impediments identified through Analysis of Impediments 

 

177 U.S. Commission on Civil Right Document Request #2. 

178 USCCR, Federal Title VI Enforcement, pp. 350–51. 
Staff Draft May 2004 141

to Fair Housing Choice.179 HUD is able to assess and report periodically on the status of Title VI 

compliance. Consolidated Plan submission does not require states’ and localities’ detailed plans 

for bringing discriminatory programs into compliance. However, FHEO does obtain detailed 

plans through Voluntary Compliance Agreements and during its review and monitoring of a 

Community Development Block Grant entitlement jurisdiction’s certification of compliance with 

Title VI. FHEO reviews states’ or local agencies’ Title VI compliance policies and activities and 

monitors their data collection and analysis programs.180

Among this section’s key points are: 

 FHEO has established the Risk Analysis Data Management System to assist in 

determining the potential of a recipient for violating program-related civil rights 

requirements. 

 FHEO requires state and local jurisdictions to address fair housing impediments on a 

comprehensive basis. 

 FHEO reviews states’ or local agencies’ Title VI compliance policies and activities and 

monitors their data collection and analysis programs. 

 HUD is able to assess and report periodically on the status of Title VI compliance. 

Certification of State and Local Fair Housing Agencies 

The Commission stated in its 1992 report that despite improvement in timeliness and 

quality of HUD’s technical assistance, many agencies did not understand the procedures or 

criteria for attaining “substantial equivalence.”181 The Commission therefore recommended that 

HUD develop a clear working definition of “substantially equivalent,” and provide uniform 

guidelines on the different phases of the certification process.182 Furthermore, HUD should 

develop an instructional manual on the certification process to ensure consistency in technical 

assistance. Together, these documents would help agencies better understand the process and 

encourage them to gain certification, thereby increasing the pool of agencies eligible to process 

fair housing cases under FHA.183 

FHEO’s assistant secretary has both retained and redelegated authority to FHEO’s 

general deputy assistant secretary to certify that a state or local fair housing law is substantially 

equivalent (significantly comparable) to FHA.184 HUD has published the “Substantial 

 

179 HUD Interrogatory, pp. 52–54. Analysis of Impediments is a HUD requirement for each state to conduct an 

analysis to determine impediments to fair housing choice within the state. The state must take appropriate actions to 

overcome the effects of any impediments identified through that analysis. See U.S. Department of Housing and 

Urban Development, “HUD’s Glossary of Terms,” <http://www.hud.gov/cfo/glossary.html> (last accessed Feb. 27, 

2004). 

180 HUD Interrogatory, p. 55. 

181 USCCR, Federal Fair Housing System, p. 32. 182 Ibid., p. 2. 

183 Ibid., pp. 32–33. 

184 HUD Interrogatory, p. 56. Redelegation of the authority to certify that a state or local fair housing law 

substantially equivalent to FHA to FHEO’s general deputy assistant secretary is not in the regulations. 
Staff Draft May 2004 142

Equivalence Certification Process Manual.” This manual provides an overview of substantial 

equivalency certification, its benefits, and answers to frequently asked questions on the 

process.185 Briefly, a state or local fair housing law is significantly comparable to FHA when a 

state or local agency applies for certification, and HUD determines that the agency enforces a 

law that provides substantive rights, procedures, remedies and judicial review provisions 

substantially equivalent to the FHA.186 HUD has also published certification guidelines for 

substantial equivalence in the Federal Register of August 7, 1996, “Office of the Assistant 

Secretary for Fair Housing and Equal Opportunity Regulatory Reinvention; Certification and 

Funding of State and Local Fair Housing Enforcement Agencies.”187 This rule, effective 

September 6, 1996, “finalizes policies and procedures [concerning certification and funding of 

state and local fair housing agencies] set forth in the February 28, 1996 interim rule and takes 

into consideration public comments submitted on the interim rule.”188 

State and local agency efforts to enact substantially equivalent fair housing laws were 

hampered, according to the Commission’s 1992 report, because of a lack of involvement from 

federal, state, and local business and civic leaders in the certification process. Thus, support for 

certification was not generated within these communities, resulting in proposed or revised fair 

housing statutes being rejected or delayed by the local legislative body. Furthermore, most of the 

agencies that received Interim Referral Agreements cited strong support from and involvement 

of such groups as civic and government leaders and private fair housing entities. Moreover, in 

some HUD regions, regional administrators and regional FHEO directors were active in 

certification, often lending support to staff efforts. The Commission therefore recommended that 

HUD ask federal, state, and local business and civic leaders to actively support the certification 

of HUD state and local agency fair housing laws as substantially equivalent to FHA. 

Furthermore, hub directors should (1) contact state and local agency directors periodically 

regarding their certification process, (2) issue memoranda in support of state and local agencies 

seeking substantial equivalence, and (3) attend meetings on issues related to substantial 

equivalence.189 

HUD now has invited city and state officials to HUD-sponsored conferences (such as the 

FY 2002 National Policy Conference) and plans to invite them to the FY 2004 National Policy 

Summit. HUD also met with city and state officials to discuss the certification process. 

Furthermore, HUD says it conducts outreach in different cities, distributed information on the 

FHAP program, and posted a Web page on how to become substantially equivalent. According 

to agency officials, these outreach techniques, along with the Web site, resulted in several 

agencies’ applying for the FHAP program; although HUD could not provide supporting 

 

185 U.S. Commission on Civil Rights Document Request #14. HUD provided a copy of the manual. It is available 

online; U.S. Department of Housing and Urban Development, “Substantial Equivalency Certification,” 

<http://www.hud.gov:80/offices/fheo/partners/FHAP/equivalency.cfm> (last accessed Dec. 31, 2003).

186 U.S. Commission on Civil Rights Document Request #14, “Substantial Equivalence Certification Process 

Manual.” 

187 24 C.F.R. pts. 111 and 115. See Part VII Federal Register, Aug. 7, 1996. 188 61 Fed. Reg. 41,282 (1996) (to be codified at 24 C.F.R. pts. 111 and 115). See Part VII Federal Register, Aug. 7, 

1996, pp. 41284–41291. HUD provided a copy of the guidelines. 

189 USCCR, Federal Fair Housing System, pp. 32–34. 
Staff Draft May 2004 143

evidence. HUD officials also indicated that FHEO regional directors provide ongoing technical 

assistance to potential FHAP agencies in a variety of ways, such as giving legal advice to state 

and local agencies on their proposed legislation and assigning HUD staff to provide sustained 

and timely assistance to agency representatives in drafting their laws to be substantially 

equivalent. Moreover, hub directors meet with the potential FHAP agencies to discuss the 

progress of the agency’s certification, and invite them to HUD-sponsored conferences and 

seminars, such as the policy conferences and attorney training. Headquarters FHEO staff are also 

available to provide technical assistance to potential FHAP agencies.190 

The Commission’s 1994 report stated that in two separate evaluations for substantial 

equivalency status, HUD did not consult knowledgeable civil rights or women’s organizations, 

or any fair housing groups on the aforementioned agencies’ performance. Furthermore, no 

outreach efforts had been made to local interested parties to ascertain their perspectives. The 

Commission advised HUD to consult broadly and also consider making available its Federal 

Register notice inviting comments on the performance of agencies seeking certification to 

relevant interested parties.191

HUD states that the assistant secretary now periodically publishes public notices in the 

Federal Register seeking comments on the existing fair housing law that an agency enforces and 

its performance in enforcing that law before making a final decision on whether to grant 

certification of FHA equivalency. Only two such notices have been published.192 In FY 2002, 

HUD published a list of existing FHAP agencies and invited comments on their performance. 

HUD also published a list of all agencies that had interim certification or certification, and 

agencies to which a notice of denial of interim certification had been issued, or for which 

withdrawal of certification had been proposed for public information.193 

The current report had planned to show the universe of potential state and local agencies 

that HUD could target as participants in FHAP. HUD could not, however, produce this 

information. Instead, it offered data showing the number of agencies that had contacted HUD to 

inquire about certification. As of FY 2004, 49 state and local agencies from eight of HUD’s 10 

regional hubs had contacted the agency about becoming certified. Twenty-four of the agencies, 

or close to 49 percent, are from Midwest and the Southeast Caribbean regional hubs.194 HUD 

only has 98 FHAP agencies, almost 15 years after FHA was enacted. Of the 98 FHAP agencies, 

 

190 HUD Interrogatory, p. 59. 

191 USCCR, Federal Title VI Enforcement, p. 226. 

192 These are (1) 68 FR 42184, Notices, Department of Housing and Urban Development (HUD) Office of the 

Assistant Secretary for Fair Housing and Equal Opportunity [Docket No. FR-4688-N-02], Responses to Notice of 

Certification and Funding of State and Local Fair Housing Enforcement Agencies Under the Fair Housing 

Assistance Program (FHAP), Part III, Wednesday, July 16, 2003, Action: Notice, Federal Register, vol. 68, no. 136. 

(2) 67 FR 9138, Notices, Department of Housing and Urban Development (HUD) Office of the Assistant Secretary 

for Fair Housing and Equal Opportunity [Docket No. FR-4688-N-01], Notice of Certification and Funding of State 

and Local Fair Housing Enforcement Agencies Under the Fair Housing Assistance Program (FHAP); Request for 

Comments, Part V, Feb. 27, 2002, Action: Notice and Request for Comments, Federal Register, vol. 67, no. 39. 

193 HUD Interrogatory, p. 59. 

194 John M. Sheehy, program analyst, U.S. Department of Housing and Urban Development, e-mail, Oct. 31, 2003. 

Ten or more agencies in each of the aforementioned hubs made contact with HUD. 
Staff Draft May 2004 144

69 percent are certified while 31 percent are in interim status;195 36 of the 98 are state agencies 

(including the District of Columbia), while the remaining 62 are local agencies.196 

Among this section’s key points are: 

 HUD has developed the “Substantial Equivalence Certification Process Manual” and 

certification guidelines. 

 HUD has involved state and city officials in its National Policy Conferences, and regional 

directors provide ongoing technical assistance to potential substantially equivalent state 

and local agencies. 

 HUD does not have a list showing the universe of all state and local fair housing in the 

nation and their certification status. 

 Nearly 15 years after FHA became operational, HUD only has 98 FHAP agencies, of 

which 31 percent are in interim status. 

Creating New Private Fair Housing Organizations 

The Commission’s 1994 report found that FHIP funds were mainly distributed in the 

Northeast and Midwest, thus underserving the rest of the country. Thus, it recommended that 

HUD use FHIP funds allocated under the Fair Housing Organization Initiative to create new fair 

housing groups as well as expand existing ones in the underserved areas of the country.197 

HUD identifies three initiatives to promote the formation of fair housing groups. The first 

is through FHIP’s Education and Outreach Initiative. Agency officials report that two new 

regional/local community-based components, the Hispanic Fair Housing Awareness Component 

and the Fair Housing and Minority Homeownership Component, have been added to the FHIP 

initiative to provide outreach to minority group members. The second initiative is FHIP’s 

modification of NOFA. For example, in FY 2003, the FHIP NOFA made clear that an additional 

five points would be awarded to applicant-organizations located in underserved areas of the 

country. HUD states that this incentive helps create new organizations and assists in building the 

capacity of fledgling organizations in underserved areas. Finally, NOFA specifies that the Fair 

Housing Organization Initiative supports the creation of new organizations in underserved or 

unserved areas of the United States. Applicants to this initiative must provide data and statistical 

information supporting the need for new fair housing organizations in their recommended areas 

as well as demonstrate how these are currently underserved.198 

The current study also analyzed HUD data on the number of new private fair housing 

enforcement organizations that had been created. Between FY 1998 and 2002, such 

organizations had been created in all 10 regions. There are, however, noticeable differences. 

 

195 U.S. Commission on Civil Rights Document Request #24. 

196 Elizabeth Frank, deputy director, Office of Enforcement, U.S. Department of Housing and Urban Development, 

through Kirk I. Perry, senior program analyst, Office of Policy and Program Evaluation, U.S. Department of 

Housing and Urban Development, e-mail, Feb. 25, 2004. 

197 USCCR, Fair Housing Amendments Act Report, p. 227. 

198 HUD Interrogatory, p. 61. 
Staff Draft May 2004 145

Larger numbers of new fair housing offices were found in four hub regions: Midwest (40) 

Southeast Caribbean (37), Mid-Atlantic (25), and Pacific-Hawaii (25). Together the four regions 

contained 62.9 percent of the new organizations. Two of these regions, Midwest and Southeast 

Caribbean, had the highest number of agencies contacting HUD in FY 2003 on certification. The 

remaining 75 new fair housing offices, or 37.1 percent, are spread out in six hub regions. 

 Among this section’s key points are: 

 HUD identifies three initiatives to increase the number of new fair housing organizations. 

 The regional distribution of new private fair housing enforcement organizations remains 

somewhat unbalanced.

Conclusion 

 HUD is commended for responding to the Commission’s interrogatory for this study in a 

detailed and thorough manner. Evidence shows that HUD considered the Commission’s previous 

recommendations and implemented many of them. 

The Commission has concerns and reasons for encouragement. Foremost among the 

concerns is the adequacy of the existing staffing and funding levels in light of increase over time 

in the number of Title VI and FHA complaints filed and pre-award and post-award reviews 

conducted. Besides, FHEO had to divert resources in order to implement an initiative to reduce 

aged cases. The wide fluctuation in training funds did not inspire confidence nor did the abortion 

of a FHEO training plan because of funding constraints. As to oversight, insufficient staff and 

funding did not permit HUD to perform the full range of enforcement activities that it should; for 

example, on-site monitoring of recipients whose civil rights risk was moderate occurred when 

there were travel and staff resources. HUD’s buyout effort to reduce the total number of 

employees to meet the congressional mandated ceiling of 9,177 centers on four offices, one of 

which is FHEO. 

The addition of a general deputy assistant secretary and having the DASs and hub and 

field oversight staff reporting to this staff member formally further distanced the FHEO assistant 

secretary from headquarters and hub and field Title VI and Title VIII staff. Recent HUD 

communication states that this is only a reporting structure. In practice, there are informal and 

scheduled formal meetings between the assistant secretary and the DASs and hub field staff. 

HUD had traveled some distance with regard to the update, revision, development, and 

issuance of policy guidance and manuals since the Commission’s previous reports. It had also 

shown considerable improvement in providing Title VI and FHA technical assistance. 

The total number of complaints filed each year with HUD, FHAP, DOJ, and the National 

Fair Housing Alliance make up less than 1 percent of the estimated acts of illegal housing 

discrimination that occur annually. At the beginning of FY 2003, about 30 percent of HUD’s 

non-complex open case inventory and 44.7 percent of FHAP’s, were aged. The average age of 

aged cases for HUD and FHAP was 400 and 317 days, respectively. Secretary-initiated 

complaints remained significantly underutilized, with only four cases filed over a six-year 

period. This is a powerful strategy against broad-based discrimination and its regular and 
Staff Draft May 2004 146

frequent use advances civil rights enforcement. Taken together, it is reasonable to conclude that 

justice may not be forthcoming in a timely way for many victims of housing discrimination. 

HUD’s overall evaluative framework is its strategic plan. HUD had measurable indicators 

in its strategic plan and APP as well as in FHEO’s AMP. HUD should ensure performance 

indicators measured results of processes as well as the extent to which HUD achieved its 

mission, “to increase homeownership, support community development and increase access to 

affordable housing free from discrimination.” More generally, HUD sometimes evaluated 

initiative results. Perhaps the best example was its education and outreach campaign to engage 

farm workers in the federal complaint process. HUD made a deliberate decision to determine the 

campaign’s impact. On the other hand, there were instances in which no efforts were made to 

assess initiative results. Assessment is integral to success. 

HUD is to be commended for its initiatives to create more fair housing enforcement 

organizations, particularly in the underserved areas. Regional distribution of new fair housing 

organizations, however, was still somewhat unbalanced. 

At the same time, it was not possible to characterize the current certification status of all 

state and local agencies because HUD did not have a list of all such agencies with their 

corresponding status. This major data limitation was an obstacle to the agency’s education and 

outreach, and to increasing the number of HUD-certified state and local fair housing agencies to 

investigate complaints. Finally, almost 15 years after FHA became operational, there were just 

98 state and local substantially equivalent agencies participating in FHAP to process complaints, 

and only 69 percent of them are certified. 
Staff Draft May 2004 147

Chapter 6: Findings and Recommendations 

The Commission’s investigation of the extent to which the Departments of Education 

(DOEd), Health and Human Services (HHS), Housing and Urban Development (HUD), and the 

Equal Employment Opportunity Commission (EEOC) implemented recommendations made in 

its previous reports finds mixed results. Overall, the record is uneven. HUD implemented many 

of the Commission’s recommendations; DOEd indicates that some recommendations were not 

addressed because the specific issues were no longer priorities within the Office for Civil Rights 

(OCR); HHS implemented some but not most of the recommendations; EEOC implemented few 

recommendations, asserting that existing or other practices better served it. 

Follow-up and new findings and recommendations are based on elements critical to civil 

rights enforcement, such as priority of civil rights, education and outreach, and resources.1

However, the Commission does not offer recommendations when a critical area is unrelated to 

evidence in this report, or not relevant to an agency; for example, some agencies lack basic 

infrastructure necessary to respond to some recommendations. At the same time, when an 

element is relevant to more than one agency, the Commission’s issue focus may be different as 

its critique is agency specific. 

The Commission discovers several problems that continue to affect civil rights 

enforcement. For example, resources remain an issue for some agencies, whether they elect to 

publicly acknowledge it or not. DOEd’s Office for Civil Rights asserts that a 6 percent decrease 

in full-time-equivalent staff (FTEs) between FY 2002 and 2003 without a commensurate 

decrease in mission or workload does not hinder its ability to fulfill its responsibilities. And 

despite past Commission recommendations urging the President and Congress to increase HUD 

resources, its funding and staffing remain insufficient. In addition, agencies emphasize 

performance indicators that measure process, such as the number of mediations resolved, and not 

achievement of agency mission, such as eradication of discrimination. Moreover, guidance 

issuance and update remain weak. HHS’ OCR still needs to revise and update the case resolution 

manual that investigators use in their enforcement work. EEOC’s guidance on definitions of key 

terms relevant to the Americans with Disabilities Act (ADA) was primarily issued between FY 

1993 and 2000 and is in need of review to determine relevance and currency. Finally, the 

Commission finds that assessment of initiatives and follow-up with target groups to obtain 

feedback are infrequently carried out. This situation gives rise to some new recommendations. 

Consistent with its mission and the purpose of this report, to determine the extent to 

which the agencies have abided by past recommendations, the Commission offers the following. 

 

1 See chapter 1 for a full list of the elements. 
Staff Draft May 2004 148

1. DEPARTMENT OF EDUCATION 

Priority of Civil Rights 

Finding 1.1: OCR’s organizational structure has changed since 1996. Appropriately, the 

assistant secretary for civil rights reports directly to both the Secretary and the deputy secretary. 

A deputy assistant secretary for enforcement and a deputy assistant secretary for policy report to 

the assistant secretary for civil rights. However, three key positions are vacant. The assistant 

secretary for civil rights resigned October 31, 2003, and has not been replaced. The position of 

assistant secretary for enforcement has been vacant since December 2002, and the deputy 

assistant secretary for policy position became vacant in November 2003; no one is acting in 

either position. The special assistant to the assistant secretary for civil rights is acting as assistant 

secretary for civil rights until Congress confirms a successor. 

Recommendation 1.1: To ensure that OCR’s enforcement program continues to remain 

viable, the top three vacant positions must be filled expeditiously, even if with acting personnel 

on a short-term basis until filled permanently. 

Resources––Funding and Staffing 

Finding 1.2: Although the number of FTEs decreased 6 percent between FY 2002 and 

2003, OCR does not believe that decreased staffing has hindered its ability to fulfill its 

responsibilities. Based on an analysis of OCR’s workload and the initiatives that it is not 

pursuing because of other competing priorities, the Commission is not convinced that OCR has 

enough staff to handle its many responsibilities. One demonstration is its reference throughout 

this study to its inability to implement programs that the Commission and others have advised 

were important. 

Recommendation 1.2: OCR should develop and present to DOEd officials and Congress 

its strongest possible case justification for additional staff that would ensure it can fulfill its 

responsibilities without having to choose among activities, all of which are critical to the 

agency’s mission. 

Finding 1.3: None of DOEd’s systems has ever tracked expenditures separately for 

different civil rights activities. OCR replaced its former tracking system and now uses Oracle 

Financials, the department’s automated accounting system, to track expenditures. The system 

tracks resources expended, such as travel and computer technology, but it still cannot segregate 

expenditures for OCR’s different civil rights activities. 

Recommendation 1.3: The Commission once again recommends that OCR track staff 

resources by issue area and program activity, such as complaint investigation, compliance 

reviews, and outreach and education. Tracking resources in this manner would allow OCR to 

engage in management planning necessary to ensure that civil rights statutes are being 

effectively enforced. 

Policy Guidance 

Finding 1.4: DOEd still has not issued Title VI guidelines for each of its federally 

assisted programs. Instead, as program offices bring forth problems on which they need 
Staff Draft May 2004 149

guidance, OCR considers each and responds case by case. OCR identified this as a more 

effective means than published guidance for ensuring that the agency implements programs 

consistently with applicable Title VI requirements. Informal guidance procedures do not ensure 

consistency or uniformity among the many individuals involved in the compliance process. 

Recommendation 1.4: The Commission reiterates its recommendation that OCR issue 

program specific Title VI guidelines for each of its federally assisted programs that (1) provide 

program-specific interpretations of the Title VI compliance obligations; (2) give examples 

pertaining to the particular program of compliance and noncompliance; (3) contain specific data 

reporting requirements for recipients; and (4) provide specific instructions on the information 

OCR should review and the civil rights analyses it should conduct in determining whether a 

program recipient is in compliance. The guidance should be made readily available to applicants, 

recipients, participants, beneficiaries, and the general public. 

Finding 1.5: OCR’s case resolution manual, which was first introduced in 1993 and 

updated in 2001, is used to establish different approaches to the complaint resolution process. 

Aside from outlining complaint investigation procedures, it offers a small section that instructs 

staff to use the same investigative procedures for conducting compliance reviews as they do for 

complaint resolution. The manual does not delineate procedures for pre-award or post-award 

reviews, nor does it contain separate sections for conducting compliance reviews for different 

types of DOEd programs. 

Recommendation 1.5: Because the procedures for conducting compliance reviews of 

school districts are dissimilar to the procedures for conducting compliance reviews of a college 

or university, the Commission again recommends that OCR update its case resolution manual to 

include separate sections for conducting compliance reviews of different types. 

Finding 1.6: In December 2000, OCR issued “The Use of Tests as Part of High-Stakes 

Decision-Making for Students: A Resource Guide for Educators and Policy Makers” and 

archived it in 2001 after the administration changed. OCR asserts that it does not disseminate the 

publication internally because employees rely on statute, regulations, and case law for guidance. 

OCR also said that the publication is available on request through its archived documents or 

under the Freedom of Information Act (FOIA). However, this is only partly responsive to the 

Commission’s concern. First, there is a wider audience, such as recipients, beneficiaries, 

students, state officials, educators, and parents, to whom the publication could be useful. 

However, they are unlikely to request a document that they do not know exists. Second, 

distribution on request from archives or under FOIA underutilizes the publication as a resource. 

Recommendation 1.6: OCR should make this important document available to the 

public through other avenues in addition to its Web site and in response to FOIA requests. For 

example, OCR should regularly distribute the publication during conferences and meetings, and 

when it provides proactive technical assistance and initiates outreach and education. Further, it 

should widely publicize the document’s availability through state and local education agencies’ 

and parent and teacher associations’ newsletters, newspapers, and magazines. At a time when 

federal, state, and local offices are developing and implementing tests as part of high-stakes 

decision-making for students, this guide must reach a wider public audience. It is a necessary and 

important tool for educators and policy-makers because it provides information on test 
Staff Draft May 2004 150

measurement standards, legal principles, and resources that assist them in ensuring that tests 

accurately reflect educational standards and are not discriminatory. 

Finding 1.7: OCR’s Internet site provides the general public access to OCR’s current 

education and technical assistance materials and some policy and investigative guidance 

documents. Although the list of documents is not inclusive, the public may request other 

documents. 

Recommendation 1.7: The Commission commends OCR for providing the public access 

to a wealth of information on its Web site. OCR should continue to keep the public well 

informed by updating existing information on its Web site, in addition to expeditiously posting 

new information as it becomes available. 

Technical Assistance 

Finding 1.8: OCR originally formed the “Lau Network,” composed of headquarters and 

regional staff whose members were subject-matter experts, to create informational materials for 

various regional compliance specialists and state and local school district personnel. OCR has 

since established other networks on different programmatic issues, such as access to gifted and 

talented programs and ability grouping; racial and sexual harassment; minorities and special 

education; services to English language learners; disability; testing and assessment; elementary 

and secondary desegregation; and athletics. These networks are intended to build knowledge and 

expertise in select areas, coordinate and enhance OCR’s ability to identify and obtain strong 

remedies, help OCR refine its case resolution approaches, and develop ways to monitor 

resolution agreements more effectively. 

Recommendation 1.8: The Commission commends OCR for establishing subject-matter 

expert groups to provide outreach, education, and technical assistance on different programmatic 

issues. As new issues emerge, OCR should continue its practice of forming new networks as a 

means of enhancing its ability to fulfill its civil rights responsibilities. 

Compliance Reviews 

Finding 1.9: OCR initiated fewer compliance reviews between FY 1998 and 2002 due to 

an increased monitoring workload. According to OCR, during the four years between FY 1994 

and 1998 it resolved 681 compliance reviews. This large number of resolved reviews created an 

enormous monitoring workload for OCR staff. With the number of complaints rising, OCR 

needed to reduce the number of compliance reviews it initiated. The number of initiated 

compliance reviews is again rising. OCR initiated 74 compliance reviews in FY 2003, compared 

with 11 in FY 2002. 

Recommendation 1.9: The Commission reiterates its past recommendation that although 

OCR should continue to conduct on-site compliance reviews they should be based on priority 

issues and not on the size of OCR’s complaint workload. OCR also should conduct 

comprehensive reviews that assess recipients’ entire operations, not only compliance on priority 

issues. If OCR lacks resources to fulfill its duties, it should apply staff resources differently and 

experiment with contract, detail, and temporary employees. In addition, OCR should justify to 

Congress its need for additional FTEs, to specifically perform compliance reviews, since its 
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resources are not infinite and it must choose its activity level based on how many compliance 

reviews its staff level can support. 

Deficiencies, Remedies, and Sanctions 

Finding 1.10: When OCR has found noncompliance, it has been able to secure 

compliance through voluntary agreements with recipients. OCR issues formal letters of violation 

if recipients refuse to enter into voluntary agreements. If recipients still refuse to remedy the 

violation, OCR either (1) files a “Notice of Opportunity for Hearing” to initiate fund termination 

proceedings or (2) refers the violations to the Department of Justice (DOJ) for judicial 

enforcement. Between 1996 and 2003, although OCR did not defer or terminate federal financial 

assistance, it initiated fund termination hearings against two recipients. OCR also referred two 

cases to DOJ for judicial enforcement. 

Recommendation 1.10: The Commission commends DOEd for making effective use of 

myriad enforcement options available to it, including fund termination and deferral and referral 

of cases to DOJ. To further ensure nondiscrimination, OCR should access and utilize penalties 

against recipients. Other federal agencies that encounter serious violations should do the same. 

Staff Training 

Finding 1.11: DOEd encourages its staff to develop individual training plans and offers 

courses on management and skills training. OCR encourages its enforcement staff to attend 

conferences and meetings relevant to their work. Staff attended recent training that included 

relevant Title VI enforcement topics such as interviewing skills, negotiation skills, telephone 

skills, accessibility of facilities, individualized instruction, evidence, sexual harassment, and First 

Amendment requirements. Staff may also utilize the Regional Training Centers’ training and 

career development resources. In recent years, OCR has consistently allocated hundreds of 

thousands of dollars yearly for staff training. 

Recommendation 1.11: The Commission commends OCR for allotting a budget that 

supports relevant staff training. OCR should continue to instill a culture that encourages staff to 

attend conferences and meetings relevant to their work. OCR should make individual training 

plans mandatory for all staff; managers should work with staff to develop and implement such 

plans. OCR should augment its system of regular training with annual refresher programs to 

reinforce staff capabilities. 

Output Evaluation 

Finding 1.12: While OCR measures outcomes, its methods are process oriented. It does 

not apply social science or behavioral methods, such as public surveys, focus groups, or research 

data, to evaluate its success in eradicating discrimination in educational practices within schools. 

Furthermore, OCR has neither planned nor implemented means to distinguish its activities’ 

individual effects on the organization’s efficiency and effectiveness or the overall goal of 

eradicating discrimination. Measures that ascertain the extent to which OCR activities achieve 

administrative and programmatic targets are important. However, such measures alone are not 
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sufficient to determine whether OCR has been successful in eradicating discrimination in access 

to education. 

Recommendation 1.12: In addition to process measures already in use, OCR should 

establish appropriate mission-oriented performance measures and, where applicable, use social 

science methodology, such as testing, experimentation, analysis of behavioral data, or public 

surveys, to set goals and assess progress. 

2. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

Planning and Performance Measurement 

Finding 2.1: Among the key changes during the tenure of the current chair was the 

development of a new strategic plan for FY 2004–2009. This plan states specific objectives and 

expresses measurable outcomes with deadlines as well as strategies for accomplishment. The 

plan incorporates a program evaluation schedule for private and federal sector mediation 

programs and administrative processing of private sector charges. 

EEOC said that many of its existing measures in the strategic plan get close to assessing 

the outcome of its work on employers and society. These are new measures and the agency is 

only beginning to develop approaches and expects to build databases. EEOC says that it now 

uses surveys to gather information, but that not all social science methods are appropriate in its 

line of work.

Recommendation 2.1: EEOC should develop performance measures that assess the 

extent to which employment discrimination in the workplace is being eradicated. It should 

employ appropriate social science methodology in setting goals and evaluating progress toward 

elimination of employment discrimination. 

Finding 2.2: EEOC has accomplished a substantial amount of planning in recent years. 

The agency developed a strategic plan and a Five-Point Plan, and charged a workgroup to 

develop a strategic enforcement and litigation plan to implement one of the points of the FivePoint Plan. The Revolving Fund Division developed a five-year Revolving Fund business plan 

and requires each district office to submit annual plans for fee-based Technical Assistance 

Program Seminars (TAPS) as well as annual outreach plans. 

Recommendation 2.2: The Commission agrees that plans are necessary as road maps 

and commends EEOC for the vigor with which it develops plans. However, far too much EEOC 

energy may be exhausted on developing but not necessarily implementing plans. EEOC’s 

interrogatory responses give evidence of plan development, but little of plan implementation. 

EEOC should become more action oriented and expend adequate staff time on plan execution 

and assessing results. 

Policy Guidance 

Finding 2.3: EEOC’s compliance manual is a primary source of guidance on the law and 

agency procedures for investigators. After the agency named retaliation as a priority, it updated 

the original guidance on the subject area in the compliance manual. Since 1998, however, EEOC 
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only issued two sections of its new compliance manual. Thus, the Commission said in 2000 that 

it should complete and issue a new manual. Today, EEOC still has not issued a new compliance 

manual. 

EEOC asserts that it constantly updates sections of the compliance manual as legal and 

policy developments require such updating. Field staff replace outdated sections from their 

binders with current versions. EEOC argues that this approach is more cost effective and quicker 

than replacing an entire compliance manual each time a section is revised. 

Recommendation 2.3: There is no guarantee that all field staff will always diligently 

replace old sections with new ones or not lose sections. EEOC should complete and issue a new 

compliance manual in FY 2005. This manual should be posted on EEOC’s public Web site so 

that stakeholders, employees and employers, community and advocacy groups, the bar, and 

public have direct access. Hard copies of the manual should be available on request, even to 

those who have ready access to the Internet. This manual should be annually reviewed and 

updated. A formal review process ensures that legal and policy developments are updated as 

needed. 

Finding 2.4: The Americans with Disabilities Act’s broad framework for ensuring equal 

employment opportunity and nondiscrimination for employed people with disabilities invariably 

leaves employers too much discretion to apply different definitions to key ADA-related terms. 

The Commission said in 1988 that EEOC needed to issue policy guidance to clarify its position 

on such key terms as “health insurance and disability-based insurance,” “major life activity,” 

“qualified individual,” “reasonable accommodations and undue hardships,” and “job-related and 

business necessity.” EEOC has issued definitions and guidance to clarify its position on such key 

terms; however, most of the guidance documents were issued between FY 1993 and 2000. 

Recommendation 2.4: EEOC should review the definitions that it has established and, 

where necessary, disseminate new ADA guidance that clarifies or updates to ensure relevance 

and usefulness. The agency should also survey other key terms pertinent to the ADA that have 

entered the popular lexicon since 2001 and appropriately issue guidance to clarify. These 

necessary actions would allow employers and employees to have the most current information to 

ensure nondiscrimination. 

Finding 2.5: Many activities and issues EEOC addressed required the advice of experts 

in social sciences and medicine. EEOC’s Research and Analytic Services (RAS) unit in the 

Office of Legal Counsel (OLC) had on staff social scientists, economists, and psychologists. The 

Commission said in 1988 that OLC and its ADA Policy Division had little contact with this unit. 

The Commission said that OLC staff should make use of in-house subject-matter experts during 

policy guidance development. OLC now confers with RAS on technically complex subjects such 

as economic impact analyses and statistical/systemic analyses, and investigations. OLC has 

encouraged field offices to also confer with its staff and RAS on technical issues. 

Recommendation 2.5: OLC should require field offices to seek RAS assistance and hold 

them accountable when dealing with complex technical subjects and conducting investigations. 

Further, OLC should monitor field offices to ensure that they seek RAS advice and assess them 

accordingly on this matter during staff performance evaluation. 
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Finding: 2.6: In 2000, EEOC did not follow established intervals for reviewing, 

developing, and issuing subregulatory policy guidance. The Commission said that the agency 

needed to develop a timetable for this purpose. Today, EEOC still does not have a formal time 

schedule for subregulatory policy guidance review, development, and issuance. It asserts that 

agency attorneys routinely keep abreast of developing case law, statutory amendments, and 

pertinent legal treatises and law review notes and articles. This approach is not a substitute for 

regularly scheduled, comprehensive review. 

 Recommendation 2.6: The Commission reiterates its 2000 recommendation that EEOC 

develop a formal time schedule to review, develop, and issue subregulatory policy guidance. 

EEOC also should establish formal processes that (1) collect quality input and feedback from 

affected partners and stakeholders and (2) guarantee completion by associating tasks with 

milestone and deadlines. 

Technical Assistance 

Finding 2.7: EEOC evaluation of TAPS and customer-specific training assessed how 

well the content met employers’ needs, but did not focus on whether employers changed their 

practices or company policies as a result of the training. The Commission advised EEOC in 2000 

to strengthen the evaluation to include this component. 

EEOC’s TAPS evaluation still does not determine if employers change their practices or 

company policies as a result of training. Instead, TAPS trainees complete evaluation forms that 

assess the overall seminar, instructors, handouts, audiovisuals, and individual sessions. Trainers 

also ask them to identify most useful sessions and indicate if training would help them perform 

more effectively on the job, bring about changes in the organization’s practices, or enable the 

organization to prevent or resolve discrimination claims more effectively. 

Recommendation 2.7: The Commission reiterates its previous recommendation that 

EEOC strengthen TAPS evaluation. It could, for example, include a follow-up to determine 

whether employers have changed policies as a result of attending TAPS and if they are less likely 

to be respondents to charges. 

Education and Outreach 

Finding 2.8: According to the Commission in 2000, district offices employed different 

means to reach Hispanic, Asian, and Native American communities. Outreach emphasized 

contacting ethnic media, hiring bilingual investigators and program analysts, and working with 

community groups. The Commission encouraged more innovation and urged district offices to 

exceed routine outreach approaches. District offices, it said, should develop and implement 

comprehensive programs to design and execute outreach projects that were not limited to daily 

enforcement activities. 

Since then, EEOC’s education and outreach activities have grown more extensive. For 

example, approaches to reach underserved minority communities include community forums and 

town hall meetings. Just before a meeting, EEOC arranges local press announcements of the 

event and press interviews with staff. Trainers offer day sessions aimed at employers and 

evening sessions geared toward employees and the public. EEOC also utilizes “expanded 
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presence activities,” which offer off-site individual counseling and charge-taking in partnership 

with local community groups, such as the Urban League and the Spanish American Committee, 

and service organizations, such as the State Workforce Centers. As before, staff advertise and 

promote such opportunities through the media and local community organizations. 

Recommendation 2.8: The Commission commends EEOC for its more extensive 

education and outreach than the Commission found four years ago. Other federal agencies might 

study some of EEOC’s and consider emulating them, as appropriate. 

Complaint Processing 

Finding 2.9: EEOC guidelines, the Commission said in 2000, indicated that the 

investigation of a charge should generally be completed within 120 days of the time the charge 

was initially categorized. Inadequate resources, however, required EEOC to amend this goal. 

Data from EEOC’s Charge Data System showed that the average processing time for a charge 

was 325 days, but declined since the implementation of the Priority Charge Handling Procedures 

(PCHP). The Commission recommended that EEOC re-establish the 120-day goal for processing 

charges. EEOC now reports that the average processing time was 171 days in FY 2002. 

Recommendation 2.9: EEOC should complete investigation of a charge within 120 days 

of the time the charge was initially categorized. 

Finding: 2.10: In 2000, the Commission established that PCHP stopped the issuance of 

letters to convey the reasons for decisions that investigations did not discover a violation (letter 

of determination). Instead, EEOC implemented a short standardized determination letter stating 

that the investigation failed to find a violation but which did not disclose reasons. The 

Commission recommended that EEOC staff be required to inform the charging party of how it 

reached the determination, and that staff conduct predetermination interviews with charging 

parties giving the latter the opportunity to provide any additional information before having their 

case dismissed. 

EEOC did not institute an explanatory letter but now informs charging parties that 

request an explanation through in-person interviews, telephone or conference calls, or written 

statements that accompany the standardized letter of determination. Further, there is no evidence 

that EEOC staff conduct predetermination interviews. 

Recommendation 2.10: EEOC should ensure that all charging parties receive a letter 

that provides reasons for the decision not just when requested. Such a written document would 

help charging parties in pursuing private action. In addition, the Commission reiterates its 2000 

recommendation that EEOC staff offer and conduct predetermination interviews with charging 

parties, whether they request it or not, to give them opportunity to provide any additional 

information before having their case dismissed. 

Finding 2.11: Various groups criticized EEOC for its charge intake procedures. The 

Commission indicated in 2000 that some groups said that EEOC staff discouraged individuals 

from filing charges and did not clearly explain the charge handling process. Others stated that it 

was difficult to reach EEOC staff or communicate with them. As part of its efforts to improve 

intake procedures so that customers benefit, EEOC needed to survey charging parties after 
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charge intake to receive feedback on experience with the agency. There is no evidence that 

EEOC now surveys charging parties for this purpose. Customer feedback is important since 

EEOC needs to identify and eradicate problems that charging parties face. 

In subsequent communication with the Commission, EEOC states that field offices 

previously distributed surveys to potential charging parties, and its Office of Research 

Information collected the completed surveys for analysis. The return rates, however, were too 

low for findings to be reliable. 

Recommendation 2.11: The Commission reiterates its previous recommendation that 

EEOC staff survey charging parties after intake to receive feedback on experience with the 

agency. EEOC should set up and charge a committee to determine reasons for low return rates 

and find ways to improve. In addition, EEOC should review the survey results and make 

necessary changes to improve the intake process. It should also appropriately use survey findings 

in intake training. 

Staff Training 

Finding 2.12: In 2000, the Commission concluded that EEOC should more appropriately 

train legal, investigative, outreach, and mediation staff. Fact-finding in 2004 shows that during 

the past five years, headquarters and the Office of the General Counsel (OGC) offered a number 

of nationwide training programs on a host of appropriate topics to different staff. The training 

programs that EEOC discussed in its interrogatory response were almost all held between FY 

1999 and 2002; the only exception was a telephonic conference held in FY 2003. Thus, while 

EEOC can demonstrate a commitment to staff training, it is not evident in the past 18 months. 

Recommendation 2.12: EEOC should offer biannual orientation, subject-matter, and 

refresher training to staff. New staff should be given training within three months of joining the 

agency. The Commission also urges the agency to examine college and university distance 

education formats, such as interactive audio or video conferencing, computer conferencing or 

electric mail, and use of prerecorded videotape, to determine the feasibility of such opportunities 

for maximizing resources.

3. DEPARTMENT OF HEALTH AND HUMAN SERVICES 

Resources—Funding and Staffing 

Finding 3.1: In 1996 and 1999, HHS/OCR’s Title VI resources decreased while civil 

rights responsibilities increased. This notwithstanding, OCR did not provide a detailed plan to 

the agency on how additional resources would be expended. OCR now prepares a detailed 

budget plan that outlines resource allocation for civil rights enforcement. It also reports funding 

and staffing by OCR component and activity. In 2002, OCR implemented the Program 

Management Information System to upgrade and integrate its information and management 

capabilities. OCR’s FY 2004 budget is 64.6 percent higher than in FY 1999. It concludes that 

resources are sufficient to support civil rights responsibilities without necessitating a shift in 

resources. However, OCR is not always efficient in its use of resources. For example, OCR shifts 
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headquarters staff to assist regional or field offices with enforcement, and expends resources and 

staff to carry out functions such as technical assistance to grant recipients. 

Recommendation 3.1: OCR should thoroughly assess the use of its funds and staff. It 

should study the feasibility of using operating divisions to provide technical assistance to 

recipients, thus freeing OCR resources for other enforcement functions. Further, instead of using 

headquarters staff to assist regional offices in enforcement activities, OCR should similarly give 

serious thought to using staff of eligible operating divisions for this purpose. 

Policy Guidance 

Finding 3.2: In 1996, an investigative procedures manual guided OCR’s operations. It 

contained procedures for Title VI complaint investigations, compliance reviews, and pre-award 

reviews. The manual did not, however, include comprehensive Title VI enforcement instructions. 

OCR needed to provide a manual with step-by-step instructions for implementing Title VI, from 

the application stage through compliance reviews. By 1999, OCR had replaced the investigative 

procedures manual with the case resolution manual. Some of the same deficiencies, however, 

were found in the case resolution manual. For example, it was too brief and cursory to serve as a 

procedural guide for compliance reviews and complaint investigations. In addition, the manual 

did not provide a sufficient level of comprehensive reference necessary for enforcement. OCR 

intended to revise and update the manual; however, it has not done so and continues to use the 

outdated document. 

Recommendation 3.2: OCR should revise and update the case resolution manual

annually to assist investigators in their enforcement work. The manual should include detailed 

instructions on compliance activities and data collection. It also should provide clearer 

instructions to recipients for implementing policy in an effective and nondiscriminatory manner. 

Compliance Reviews 

Pre-Award Reviews 

Finding 3.3: HHS provides federal assistance to 230,000 entities. In 1996 and 1999, 

HHS lacked a comprehensive pre-award process that included all program applicants. As of the 

1960s, only new institutional Medicare applicants and Medicare recipients that reapply for 

federal financial assistance because of a name or ownership change undergo pre-award reviews. 

These applicants and recipients include hospitals, hospices, and nursing homes. A review of 

written assurances and desk audits of these Medicare applicants do not inform OCR of possible 

discrimination in the administration of HHS’ other federally assisted programs. In addition, the 

number of applicants that undergo pre-award reviews is far below the number that receives 

funding. The small percentage of applicants that undergo pre-award reviews raises the alarming 

prospect that many other applicants may be discriminating, yet receiving funds. Furthermore, the 

pre-award reviews did not include on-site visits nor did OCR have a data collection system to 

collect and store useful information about applicants’ administration of programs. The 

Commission suggested that OCR increase the pool of applicants reviewed, institute on-site visits, 

assign desk audits to eligible operating divisions, and collect demographic data on applicants and 

beneficiaries. 
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However, OCR has not increased the pool of applicants reviewed, instituted on-site visits, 

or developed a data collection system to collect and store information on applicants and 

beneficiaries. While some regions collect demographic information on the program’s affected 

community, OCR has very little demographic data on applicants or applicant beneficiaries, and 

no information on beneficiaries that applicants reject. 

Recommendation 3.3: OCR should re-engineer its pre-award process to serve as a 

strategy for identifying problems and corrective measures before discrimination occurs. OCR 

should increase the number of applicants that undergo pre-award reviews. It should conduct onsite visits of applicants as part of the pre-award review process, particularly those applicants that 

would be new grantees. In addition, it should require demographic information from applicants 

on communities and beneficiaries, and develop criteria for selecting applicants that undergo preaward reviews. 

Post-Award Reviews 

Finding 3.4: OCR uses post-award reviews to identify deficiencies in program 

administration, allegations of barriers to program participation, and recipients’ need for 

education and technical assistance. In 1996, the number of post-award reviews, including desk 

audits and on-site visits, was small relative to the number of recipients. OCR attributed the small 

number to a lack of resources. It implemented limited-scope reviews, which usually require 

fewer resources and a small number of on-site visits, to increase the number of post-award 

reviews. By 1999, the majority of OCR’s post-award reviews were limited-scope desk audits. 

The Commission recommended that OCR set goals for a minimum number of full-scope 

reviews, which address a broad range of issues, cover at least one statute thoroughly, and include 

on-site visits. OCR now conducts limited- and full-scope reviews and since 2000, the number of 

full-scope reviews has increased significantly. However, the overall number of post-award 

reviews has continuously declined, from 270 in FY 1999 to 136 in FY 2002, and on-site reviews 

made up less than 20 percent of the reviews conducted. 

Recommendation 3.4: OCR should increase the number of post-award reviews, 

particularly the number of on-site visits. Eligible operating divisions could perform desk-audit 

reviews, enabling OCR to increase the number of post-award reviews, on-site visits, and fullscope reviews. 

Data Collection and Analysis 

Finding 3.5: Demographic data are essential in eliminating discrimination and disparities 

in health care. In the 1990s, OCR did not collect a sufficient amount of racial and ethnic 

information. Most states and federal health agencies made minimal efforts to collect healthrelated data on minority groups. Apart from the Hill-Burton Act, which requires racial and ethnic 

data collection, OCR did not request such information from recipients until compliance 

investigations and reviews. It did not collect demographic data routinely to determine minority 

communities’ access to quality health care. The Commission recommended that HHS collect and 

report public health data separately for minority subgroups, and suggested formal regulations 

that specify elements. OCR still does not collect racial information except for the Hill-Burton 

Act. Similarly, it continues to collect racial and ethnic data from recipients only during 
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compliance reviews and investigations. It will collect information on minority subgroups when 

compliance work involves or requires comparisons among Asian Americans and Pacific 

Islanders and/or Hispanics, as examples. 

Recommendation 3.5: OCR should establish formal regulations that specify data 

elements, including (1) the race, color, or national origin of the population served; (2) data on 

bilingual employees who assist non-English-speaking beneficiaries; (3) demographic information 

on members of any planning or advisory group that is an integral part of a federally assisted 

program; and (4) the location of existing or proposed facilities and information on whether the 

location will have the effect of denying access to any person on the basis of prohibited 

discrimination. 

Delegation 

Finding 3.6: In 1996 and 1999, OCR reported deficiencies in almost every enforcement 

activity, including technical assistance, education and outreach, data collection, and complaint 

processing. The Commission suggested that OCR could delegate some enforcement 

responsibilities to operating divisions, enabling OCR to concentrate on compliance reviews and 

investigations. However, delegation of authority could not take place without the Secretary’s 

endorsement and OCR’s leadership, guidance, and instruction. The Commission also 

recommended that OCR develop procedures for training and guidance, and oversight 

mechanisms to monitor the operating divisions’ enforcement. Since then, the Secretary has not 

issued a directive stating that OCR should share enforcement responsibilities with operating 

divisions, nor does OCR support such a directive. OCR believes that its organizational separation 

from the operating divisions allows promotion of civil rights compliance without potential 

conflicts or inconsistency. However, compliance reviews have not improved, and OCR shifts 

staff and assignments to meet some of its responsibilities. 

Recommendation 3.6: The Commission restates its previous recommendation that OCR 

should consider delegation as a strategy to improve enforcement. With the Secretary’s 

endorsement, OCR should establish a pilot program with a few, select operating divisions that 

have experience with external civil rights enforcement. OCR should delegate certain 

responsibilities to them and concentrate on compliance reviews and investigations. After one 

year, OCR should evaluate the pilot program and submit a report to the Secretary. Based on 

OCR’s findings and recommendations, the Secretary should issue a directive to (1) make 

delegation a policy, (2) extend the pilot program for additional study and evaluation, or (3) 

discontinue the pilot program. 

4. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 

Resources—Funding and Staffing 

Finding 4.1: Despite the Commission’s recommendations in 1992 and 1994 to the 

President and Congress to increase resources for HUD, funding remains discouraging. The 

budget for salaries and expenses showed scant annual increases between FY 1998 and 2001, and 

only began to show some improvement in FY 2002 and 2003. The Office of Fair Housing and 

Equal Opportunity’s (FHEO) staffing status is foreboding and deserves monitoring. The FY 
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2003 FTE level of 758 merely exceeds that of FY 1992 by 15. Current funding and staffing 

levels have affected FHEO’s ability to carry out essential enforcement duties, such as performing 

a significant number of post-award compliance reviews. In regard to maintaining separate 

budgets for civil rights statutes, HUD’s Total Estimation and Allocation Mechanism (TEAM), 

when fully implemented, will be able to track FHEO’s manpower and cost for enforcement 

activities. 

Recommendation 4.1: HUD should mount a forceful campaign to persuade the President 

and Congress to increase its budget such that it can fully enforce civil rights and root out housing 

discrimination. In addition, the Commission advises HUD to expeditiously fully implement 

TEAM to allow FHEO to correlate budgets with civil rights statutes and related regulatory 

execution to ensure that there is adequate enforcement funding. 

Finding 4.2: Congress funds the Fair Housing Assistance Program (FHAP) and the Fair 

Housing Initiatives Program (FHIP) separately from HUD. The annual increase in funding for 

FHAP between FY 1998 and 2003 is small except for FY 2000. However, fair housing 

complaints filed with FHAP agencies have increased yearly. Over the same review period, FHIP 

funding decreased in FY 2001 and remained unchanged in FY 2002. Notably, the total number 

of fair housing complaints filed each year with the National Fair Housing Alliance, Department 

of Justice (DOJ), HUD, and FHAP agencies constitutes less than 1 percent of the estimated 

illegal incidence of housing discrimination that occurs yearly. Further, a 2001 George 

Washington University study on segregation concluded that one of the key reasons that persons 

who suffered discrimination do not take legal action is doubt that doing so will produce results. 

The implication of the latter two facts is that there are many persons who have suffered 

discrimination, but have not filed complaints because of a lack of trust in the enforcement 

system. 

Recommendation 4.2: FHAP and FHIP’s limited resources, negligibly low numbers of 

fair housing complaints filed, and doubt about the enforcement system on the part of persons 

who experienced discrimination compellingly advocate for a funding increase for these two 

programs. Accordingly, HUD should urge the President and Congress to improve resources for 

FHAP and FHIP such that they carefully carry out duties associated with complaint processing 

and education and outreach, respectively. 

Planning and Performance Measurement 

Finding 4.3: The Commission evaluated HUD’s Title VI Civil Rights Implementation 

Plans (CRIPs) for 1990 through 1994 in its 1996 report and found them wanting. HUD should 

revise the Title VI CRIP according to the Department of Justice’s “Guidelines on Agency 

Implementation Plans.” The Commission also advised HUD to develop a “comprehensive civil 

rights enforcement plan” for all its civil rights responsibilities. This plan, it said, should be 

updated every three months and adjustable to increases and decreases in actual compliance 

activities and new or developing issues. 

HUD now states that the FY 2003–2008 strategic plan incorporates CRIP and a 

comprehensive civil rights enforcement plan. It contains measurable indicators and timelines and 

identifies long-term and intermediate performance measures/indicators for each of HUD’s six 

strategic goals. The agency Annual Performance Plan (APP) and FHEO Annual Management 
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Plan (AMP) contain numerical criteria against which actual performance is measured. Both plans 

can be adjusted during the fiscal year to accommodate unexpected events, such as an emerging 

issue that needs priority attention. Furthermore, DOJ revised the format for its CRIP report, 

“Information and Reporting Requirements for Agencies Covered by Executive Order 12,250,” to 

be effective in FY 2003. DOJ’s new format does not require objectives on Title VI, depends 

heavily on agencies’ readily accessible quantitative data, and does not expect agencies to provide 

lengthy narratives. Through the revised format, DOJ seeks to capture a “snapshot” of an 

agency’s activities. HUD’s FY 2003 “Information and Reporting Requirements for Agencies 

Covered by Executive Order 12,250” responded to DOJ questions and data requests. 

Recommendation 4.3: HUD should ensure that its plans include indicators that not only 

measure process results, such as the number of compliance reviews conducted, but mission 

accomplishment as well, such as eradication of discrimination in access to housing. Both types of 

measures are essential for determining overall progress. HUD should employ social science 

methodology, such as testing, experimentation, and analysis of public surveys, in evaluating 

mission progress. 

Technical Assistance 

Finding 4.4: The Commission advised HUD in 1992 that it should provide technical 

assistance to state and local agencies that were not already in the federal fair housing system to 

encourage participation. FHEO now offers ongoing technical assistance to state and local 

jurisdictions whose laws are not certified as significantly comparable (substantially equivalent) 

to Title VIII of the Civil Rights Act of 1968, as amended (the Fair Housing Act) (FHA)). Such 

assistance helps the agencies understand the substantial-equivalence certification process and 

provides opportunities to raise concerns and questions. For example, at the FY 2002 biennial 

National Policy Conference Forum, FHEO invited such agencies to learn more about how they 

could become certified. 

Recommendation 4.4: FHEO should evaluate the effectiveness of all technical 

assistance programs designed to encourage state and local jurisdictions whose laws are not 

significantly comparable to FHA to pursue substantial-equivalence certification. Thus, FHEO 

should monitor agencies that participate in such programs to determine if they pursue 

certification and become certified. FHEO should also ask them to evaluate the usefulness of the 

technical assistance and seek feedback for improvement. 

Finding 4.5: In 1996, FHEO technical assistance seminars had a limited focus on Title 

VI. The Commission said FHEO should train recipients and HUD civil rights staff on Title VI 

regularly. Today, HUD offers Title VI technical assistance based on DOJ guidance as needed to 

headquarters, hubs, and field staff but not in regular intervals. Technical assistance includes 

implications of the Civil Rights Restoration Act for funding recipients. 

Recommendation 4.5: HUD should offer Title VI technical assistance to headquarters, 

hubs, and field staff on an established schedule, at least once a year. Moreover, HUD should 

conduct follow-up evaluations or seminar post-mortems and feedback sessions with staff to 

determine how the efforts assisted them in their work and may be improved. 
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Education and Outreach 

Finding 4.6: HUD taps into external technological resources for education and outreach. 

FHEO has established partnerships with the National Fair Housing Alliance and the Ad Council 

to create Spanish and English radio and print advertisements to inform members of the public 

about their fair housing rights and responsibilities. A second advertisement on predatory lending 

is under production. Fair Housing Accessibility FIRST, a HUD-sponsored initiative to promote 

compliance with FHA design and construction requirements, provides materials online and offers 

telephone or online assistance to persons with questions about constructing multifamily housing 

that is accessible to persons with disabilities. This initiative began in FY 2002 and is ongoing. 

FHEO and its partners, however, do not formally evaluate the effectiveness of these efforts and 

collect feedback to help them determine how to improve. 

Recommendation 4.6: HUD should develop a rigorous evaluation program. For every 

education and outreach program HUD and its partners also should establish goals as well as 

develop measurable indicators against which actual results may be compared to determine 

progress. Further, they should obtain feedback from targeted groups to re-tool the education and 

outreach programs where necessary. 

Finding 4.7: The underreporting of fair housing complaints as reported in Finding 4.3 

also has implications for HUD’s education and outreach. It points to the need for extensive, 

systematic, sustained, and culturally sensitive education and outreach throughout the nation. 

Recommendation 4.7: HUD should establish an adequately funded and staffed Office of 

Education and Outreach at FHEO headquarters to coordinate all education and outreach 

activities. Part of the education and outreach efforts should be to improve confidence in the 

federal enforcement system to encourage persons who experienced housing discrimination to file 

complaints. Working with headquarters, hub, and field offices, this office should establish 

education and outreach goals and evaluate success. 

Certification of State and Local Fair Housing Agencies 

Finding 4.8: HUD has only 98 FHAP agencies eligible to process federal fair housing 

complaints nearly 15 years after FHA became operational; of these, 31 percent are still in interim 

status. HUD now should have at least 122 fully certified FHAP agencies, the number Congress 

grandfathered in the federal fair housing system in 1988 when it signed FHA into law. Moreover, 

HUD does not compile or maintain lists of all noncertified state and local fair housing agencies 

in the United States. Such lists would allow HUD to contact and encourage certification and 

increase the number of substantially equivalent agencies that can help process fair housing 

complaints. 

Recommendation: 4.8: HUD should vastly increase the number of certified FHAP 

agencies for civil rights enforcement. The agency should use the Internet, directories, conference 

exhibits, and other sources to identify all state and local fair housing agencies that do not have 

HUD certification. Through education and outreach efforts, and certification-eligibility training, 

HUD should encourage and help them to seek certification. 
Staff Draft May 2004 163

Complaint Processing 

Finding 4.9: The Commission’s 1994 report showed that the secretary-initiated 

complaint was an underutilized tool in eradicating housing discrimination. The Commission said 

that HUD should develop secretary-initiated complaints, issue guidance or regulations detailing 

the subjects appropriate for such complaints, and increase substantially the staff and resources 

for this purpose. 

Today, the secretary-initiated complaint remains an underused tool. The Secretary, 

through the FHEO assistant secretary, filed only four such complaints in the six years between 

FY 1998 and 2003. Furthermore, HUD eliminated separate funding and staff for secretaryinitiated complaints, thus signaling that the activity was a low priority. The FHEO assistant 

secretary has endorsed a systemic investigation unit pending the HUD Secretary’s approval. 

Recommendation 4.9: HUD should expeditiously reinstate separate funding and staff for 

secretary-initiated complaints. Moreover, it should without delay increase use of secretaryinitiated complaints and issue guidance or regulations detailing the subjects appropriate for such 

complaints. The systemic investigation unit is a step in the right direction. The HUD Secretary 

should approve and fund it adequately for implementation in FY 2005. If the systemic 

investigation unit is approved, HUD should ensure annual evaluation to determine whether it is 

serving its purpose. 

Finding 4.10: For a vast majority of fair housing cases, HUD did not make a 

determination of cause or no cause within the 100-day congressional benchmark. The 

Commission advised HUD in its 1994 report to re-examine procedures and appropriately 

institute new ones to ensure timely complaint processing without loss of quality. 

HUD states in 2004 that the average age of its open cases in FY 2003 is 143 days. 

However, about 30.0 percent of the open cases are aged more than 100 days and of those, the 

average age is 400 days. The average age of FHAP’s open cases is 165 days, 44.7 percent of 

which are aged; and the average age of aged cases is 317 days. 

Recommendation 4.10: The HUD Secretary should provide resources to FHEO and 

FHAP agencies to hire and train qualified and experienced contract workers to reduce the 

backlog of aged cases. This would allow FHEO and FHAP agencies to pay sufficient attention to 

new cases so that they do not suffer the same fate. 

Finding 4.11: In 1994, the Commission reported wide variation in the methods regional 

offices used in case management. Now FHEO makes numerous efforts to reduce such variation. 

It established standard procedures in staff handbooks. OGC regularly issues memoranda to 

regional counsel specifying changes in internal procedures for referencing FHA cases. OGC 

headquarters Office of Fair Housing Enforcement Division assigns desk officers to assist specific 

regional counsel offices. Moreover, OGC offers training to all fair housing attorneys and makes 

available current information on FHA enforcement policies and procedures. 

Recommendation 4.11: FHEO should now assess if wide methodological variation in 

case management in regional offices is still a problem. It could enlist the help of audit teams for 

this purpose. Furthermore, it should obtain feedback from regional offices to determine which of 
Staff Draft May 2004 164

the above approaches for reducing methodological variation in case management is most 

effective and to make improvement. 

Compliance Reviews 

Finding 4.12: Post-award compliance reviews are a key component of civil rights 

enforcement and as such needed to be carried out consistently and effectively to ensure 

nondiscrimination. The Commission established in 1996 that the number of compliance reviews 

FHEO conducted varied considerably from year to year. Moreover, the number of Title VI 

compliance reviews conducted was small compared with the number of HUD funding recipients. 

Consequently, the Commission advised HUD to conduct compliance reviews of all grant 

recipients on a rotating basis, at least once every three years. 

HUD says it gives grants to more than 40,000 agencies that help it to assist the public 

with housing problems. It states that current staffing and funding are inadequate to support the 

level of post-award on-site compliance reviews it should perform on a rotating triennial basis. 

Instead of reaching this standard for all recipients, HUD selects Public Housing Agencies and a 

small select number of recipients in each hub. 

Recommendation 4.12: The Commission reiterates its 1996 recommendation that FHEO 

take action to reach the standard of conducting compliance reviews of all grant recipients on a 

rotating basis, at least once every three years. The HUD Secretary should ensure FHEO has 

resources to reach this standard. 

Finding 4.13: FHEO developed the Risk Analysis Data Management System that is 

implemented in all FHEO field offices for determining recipients’ civil rights–related risk 

potential. Recipients identified as high risk require either on-site program monitoring or 

compliance reviews under Title VI or other civil rights statutes; recipients identified as moderate 

may also be monitored on site, depending on travel and staff resources. 

Recommendation 4.13: The Commission commends HUD for developing and 

implementing the Risk Analysis Data Management System. Other civil rights federal 

investigations unit agencies should review this system and create similar ones where appropriate. 

Staff Training 

Finding 4.14: The Commission has advised HUD to improve staff training since 1992. 

Its 1992 report stated that headquarters and field staff tasked to assist state and local agencies 

seeking certification of substantial equivalency and to instruct such agencies on the federal 

requirements for complaint processing did not have the necessary training. By the time the 

Commission issued its 1994 report, training for FHEO staff improved but was sporadic and 

uneven, with a training budget that varied enormously from year to year. The Commission 

therefore recommended that HUD implement a comprehensive approach to training new and 

continuing FHEO staff that included clearly defined training goals and adequate budgets. 

From 1997 to the present, extreme fluctuations in FHA enforcement funding levels 

prevented FHEO from implementing a comprehensive approach to FHA training for new and 

continuing FHEO staff. Beginning in May 2004, HUD’s Fair Housing Training Academy 
Staff Draft May 2004 165

(FHTA) plans to offer continuing professional fair housing training and certification for FHAP 

agency staff for the first time. FHTA certification signifies nationally recognized and respected 

credentials for fair housing enforcement and investigation. 

Recommendation 4.14: The Commission recommends that the HUD Secretary also 

provide continuing professional fair housing training and certification for current and future 

FHEO enforcement staff so that they too have the opportunity acquire FHTA certification. This 

would allow HUD to have fair housing enforcement and investigative staff with nationally 

recognized and respected credentials. HUD should consider using FHTA for all appropriate staff 

training. Senior FHEO enforcement staff could collaborate with FHTA to develop pertinent 

curricula and training goals, serve on instructional teams along with outside experts, and assess 

training results.