EQUAL

EMPLOYMENT

OPPORTUNITY

Complaint Caseloads

Rising, With Effects of

New Regulations on

Future Trends Unclear

United States General Accounting Office

GAO Report to Congressional Requesters

August 1999

GAO/GGD-99-128

United States General Accounting Office General Government Division

Washington, D.C. 20548

Page 1 GAO/GGD-99-128 EEO Complaint Caseloads

B-283327

August 16, 1999

The Honorable Elijah E. Cummings

Ranking Minority Member

Subcommittee on Civil Service

Committee on Government Reform

House of Representatives

The Honorable Albert R. Wynn

House of Representatives

In July 1998, we reported that from fiscal year 1991 to fiscal year 1997, the

inventory of unresolved equal employment opportunity (EEO) complaints

at federal agencies and the U. S. Equal Employment Opportunity

Commission (EEOC) and the time taken to process them had increased

because agencies and EEOC had not been able to keep up with the influx

of new cases.1

 This report responds to your request that we update the

analyses presented in our July 1998 report of (1) trends in the size of

inventories and the age of cases in inventory at various stages of the EEO

complaint process, (2) trends in the number of complaints filed by federal

employees and the time taken by agencies and EEOC to process them, and

(3) implications of these trends and how future caseloads may be affected

by EEOC’s regulatory changes to the complaint process.2

Inventories of unresolved federal sector discrimination cases at agencies

and EEOC have continued to grow. Overall, from fiscal year 1991 to fiscal

year 1998, complaint inventories at federal agencies rose by about 114

percent, to 36,333. At EEOC, during the same period, the hearings

inventory rose by 280 percent, to 11,967, while the appeals inventory went

up by 648 percent, to 10,966. As inventories grew, the average age of cases

in agencies’ inventories (446 days) and EEOC’s hearings (320 days) and

appeals (293 days) inventories also reached new levels.

 

1

Equal Employment Opportunity: Rising Trends in EEO Complaint Caseloads in the Federal Sector

(GAO/GGD-98-157BR, July 24, 1998).

2

In Equal Employment Opportunity: Data Shortcomings Hinder Assessment of Conflicts in the Federal

Workplace (GAO/GGD-99-75, May 4, 1999), we reported on faults in the EEO complaint caseload data.

Several of those shortcomings relate to the lack of data needed to answer certain fundamental

questions about workplace conflicts and are not necessarily related to total caseloads. These are,

however, shortcomings that could affect total caseload measurements. On balance, total caseload data

currently available, while needing further quality assurance checks, do present useful information on

the volume of complaints actually being processed in the federal EEO complaint system.

Results in Brief
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Page 2 GAO/GGD-99-128 EEO Complaint Caseloads

The size of the inventories and the age of cases in them continued their

upward trend during fiscal year 1998 as neither the agencies nor EEOC

kept up with the influx of new cases. Agencies’ inventories grew by 6

percent in fiscal year 1998 despite a 2.8 percent decline in the number of

new complaints. The growth in EEOC’s inventory of hearing requests

during this period—19.5 percent—was greater than the increase in the

number of new hearing requests, which rose by 9.2 percent. At the same

time, EEOC’s appeals inventory increased by 9.9 percent, even though the

number of new appeals filed remained almost unchanged.

The average time to process a complaint at agencies showed a small

decline in fiscal year 1998, from 391 to 384 days, but there were sharp

increases in the average time EEOC took to process hearing requests

(rising from 277 to 320 days) and appeals (rising from 375 to 473 days). A

case traveling the entire complaint process—from complaint filing at the

agency through hearing and appeal—could be expected to take 1,186 days

(about 38 months) to process, based on fiscal year 1998 data. This was 91

days (3 months) longer than in fiscal year 1997.

The logjams at EEOC and agencies are likely to persist, at least in the short

run, as long as agencies and EEOC receive more new cases than they

process and close. The long-term outlook, however, is unclear. Substantive

revisions to complaint program regulations and procedures are to be

implemented beginning in November 1999. These revisions are intended to

reduce the volume of cases flowing through the complaint process. The

revisions include a requirement that agencies offer alternative dispute

resolution (ADR), as well as other rules to reduce the opportunities for

multiple complaints by the same complainant. However, EEOC has not yet

developed estimates of how the revisions to program regulations will

affect caseload trends and resource needs, nor has the agency completed

development of measures and indicators to track the effects of these

revisions once they are implemented. We recommend that EEOC develop

such estimates and complete development of measures and indicators to

track and assess the impact of these revisions on caseload trends.

Federal employees, including postal workers, are protected by a variety of

laws against discrimination based on race, color, sex, religion, national

origin, age, or disability.3

 In addition, federal employees are protected from

 3

We refer to the U. S. Postal Service as a federal agency, even though it is an independent governmental

establishment, because it is bound by most of the same discrimination complaint processes that apply

to most federal agencies.

Background
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Page 3 GAO/GGD-99-128 EEO Complaint Caseloads

retaliation for filing a complaint, participating in an investigation of a

complaint, or opposing a prohibited personnel practice. 4

Federal employee EEO complaints are to be processed in accordance with

regulations (29 C.F.R. part 1614) promulgated by EEOC. These regulations

also establish processing time requirements for each stage of the

complaint process. Under these regulations, federal agencies decide

whether to dismiss or accept complaints employees file with them and

investigate accepted complaints. After the investigation, a complainant can

request a hearing before an EEOC administrative judge who may issue a

recommended decision that the agency is to consider in making its final

decision. An employee who is dissatisfied with a final agency decision or

its decision to dismiss a complaint may file an appeal with EEOC.5

Generally, federal employees must exhaust the administrative process

before pursuing their complaints in court.6

EEOC will be implementing changes to the complaint process beginning in

November 1999. One of the most significant changes involves decisions

issued by administrative judges. Under the regulations, these decisions

would no longer be recommendations that agencies could modify. Rather,

as its final action (as final decisions will be called), an agency would issue

a final order indicating whether or not it would fully implement the

administrative judge’s decision. If the agency chooses not to fully

implement the decision, it will be required to file an appeal of the decision

with EEOC. Complainants would retain their right to appeal an agency’s

final order. For a further discussion of the complaint process and

upcoming changes, see app. II.

In July 1998, we reported on our analysis of inventories of unresolved EEO

complaints at federal agencies and EEOC and how trends in the number of

 4

Applicants for federal employment may file complaints with a federal agency that they believe

engaged in discriminatory conduct.

5

Postal workers who are covered under collective bargaining agreements and who allege

discrimination have more redress opportunities than other federal workers covered under collective

bargaining agreements. These postal workers can take two courses of action concurrently: (1) file a

discrimination complaint under the federal employee discrimination complaint process and also (2) file

a grievance through procedures under the collective bargaining agreement. Other federal workers who

are employed by agencies subject to the provisions of title 5 of the U.S. Code and covered under

collective bargaining agreements must choose between these two redress paths.

6

An individual may file suit in federal district court under certain circumstances. For example, (1) after

180 days from the date of filing a complaint, if there has been no final agency decision and no appeal

has been filed or (2) after 180 days from the filing of an appeal if there has been no final decision by

EEOC.
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Page 4 GAO/GGD-99-128 EEO Complaint Caseloads

complaints filed and the time taken to process them had contributed to

inventory levels.7

 We found that

• agencies’ complaint inventories, and even more so, EEOC’s hearings and

appeals inventories, had increased since fiscal year 1991;

• as the size of inventories grew, so did the average length of time that cases

had been in inventory as well as the proportion of cases remaining in

inventory longer than allowed by regulations;

• the size of the inventories and the age of cases in them increased as

agencies and EEOC did not keep up with the influx of new cases;

• with the increased caseloads, EEOC and, to some extent, agencies, took

longer on average to process complaints, contributing to the size and age

of inventories; and

• the implications of these trends were that inventories of cases pending

would grow even larger in the future, particularly at EEOC, and that cases

would take even longer to process.

In updating our analysis, we used preliminary data for fiscal year 1998

provided by EEOC and reviewed the agency’s budget request for fiscal

year 2000 and its Annual Performance Plans for fiscal years 1999 and 2000.

We also examined EEOC’s planned changes to the complaint process. In

addition, because postal workers have accounted for about half of the

complaints filed in recent years, we separately analyzed data reported by

the U.S. Postal Service in order to compare statistics for the postal

workforce with the nonpostal workforce (see app. III). Appendix I

contains details about our scope and methodology.

We requested comments on a draft of this report from the Chairwoman,

EEOC, and the Postmaster General. Their comments are discussed near

the end of this letter. We performed our work from March through May

1999 in accordance with generally accepted government auditing

standards.

Since we last reported in July 1998, agencies’ complaint inventories and,

even more so, EEOC’s hearings and appeals inventories were, once again,

higher. Table 1 shows the trends in the inventories of complaints at

agencies and of hearing requests and appeals at EEOC for fiscal years 1991

to 1998.

 

7

GAO/GGD-98-157BR.

Scope and

Methodology

Complaint Inventories

Continued to Rise
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Page 5 GAO/GGD-99-128 EEO Complaint Caseloads

Number of cases

1991 1992 1993 1994 1995 1996 1997 1998

Percent

increase

Complaints 16,964 18,668 22,258 27,044 30,605 31,195 34,286 36,333 114.2

Hearing requests 3,147 3,977 3,991 5,177 6,367 8,275 10,016 11,967 280.3

Appeals 1,466 2,029 2,900 4,363 6,498 8,376 9,980 10,966 648.0

Source: GAO analysis of EEOC data.

At agencies, the inventory of unresolved complaints had risen from 16,964

at the end of fiscal year 1991 to 34,286 by the end of fiscal year 1997. One

year later, agencies’ inventories of unresolved complaints had increased by

an additional 6 percent, to 36,333.8

 Inventory levels increased at the Postal

Service and nonpostal agencies in fiscal year 1998, but growth was more

rapid in the nonpostal agencies. Compared with fiscal year 1997, the Postal

Service inventory increased by 3.3 percent, from 13,549 to 13,996 (see app.

III, table III.1), while the inventories at nonpostal agencies rose by 7.7

percent, from 20,737 to 22,337. Overall, from fiscal year 1991 to fiscal year

1998, complaint inventories at federal agencies rose by about 114 percent.

The increase in agencies’ inventories was accounted for mainly by the

growing number of the agencies’ cases pending a hearing before an EEOC

administrative judge. An agency’s inventory of unresolved complaints is

affected by EEOC’s handling of hearing requests because EEOC must

resolve a hearing request before an agency can make a final decision on

the complaint. Of the 36,333 cases in agencies’ inventories at the end of

fiscal year 1998, 13,357 (about 37 percent) were awaiting a hearing before

an EEOC administrative judge. The 13,357 cases awaiting a hearing before

an EEOC administrative judge represented a 3,755 case (39 percent)

increase over the fiscal year 1997 level of 9,602. The increase in the

number of cases in the hearing stage more than offset reductions in the

number of cases in agencies’ inventories at the initial acceptance/dismissal

and final agency decision stages of the complaint process.

At EEOC, the inventory of hearing requests, which had increased from

3,147 at the end of fiscal year 1991 to 10,016 at the end of fiscal year 1997,

increased by an additional 19.5 percent, to 11,967, by the end of fiscal year

1998. Overall, from fiscal year 1991 to fiscal year 1998, EEOC’s hearing

request inventory rose by about 280 percent. EEOC’s inventory of appeals,

which had increased from 1,466 to 9,980 during fiscal years 1991 to 1997,

increased by an additional 9.9 percent, to 10,966, by the end of fiscal year

 

8

The figure for fiscal year 1997 is revised from the preliminary figure reported in GAO/GGD-98-157BR.

Table 1: Inventories of Complaints at Agencies and Hearing Requests and Appeals at EEOC for Fiscal Years 1991-1998
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Page 6 GAO/GGD-99-128 EEO Complaint Caseloads

1998. Overall, from fiscal year 1991 to fiscal year 1998, EEOC’s appeals

inventory rose by 648 percent. (See app. IV, figure IV.2).

As the size of the inventories continued to grow, so did the average length

of time that cases, and the conflict underlying these complaints, remained

unresolved. Table 2 shows the trends in the average age of complaints in

agencies’ inventories and of hearing requests and appeals in EEOC’s

inventories for fiscal years 1991 to 1998.

Average age of cases (days)

1991 1992 1993 1994 1995 1996 1997 1998

Complaints 379 377 368 289 367 397 438 446

Hearing

requests 128 171 105 125 162 205 243 320

Appeals a 87 99 127 179 241 285 293

a

Not reported.

Source: GAO analysis of EEOC data.

The overall average age of unresolved complaints in agencies’ inventories,

after declining through fiscal year 1994, reached a new level of 446 days at

the end of fiscal year 1998. The age of cases varied by the stage of the

complaint process. Table 3 shows the average age of complaints in

inventory, from the time a complaint was filed, at various stages of the

complaint process, both overall and at the Postal Service and nonpostal

agencies at the end of fiscal year 1998. (Also see app. IV, figure IV.3 for

trends in the average age of complaints in inventory at the various stages

of the complaint process for fiscal years 1991 to 1998.)

Stage of complaint process

Acceptance/

dismissal Investigation Hearing

Agency

decision All cases

Postal Service 212 300 675 285 450

Nonpostal

agencies 267 309 621 589 446

All federal

agencies 258 305 645 477 446

Note: Numbers represent days.

Source: GAO analysis of EEOC data.

As table 3 shows, the complaints that were in agencies’ inventories the

longest at the end of fiscal year 1998 were those awaiting a hearing before

an EEOC administrative judge. The average age of cases awaiting a hearing

had a significant impact on the overall average age of unresolved

complaints in inventory, particularly at the Postal Service.

Age of Complaints in

Inventories Continued to

Grow

Table 2: Average Age of Complaints in

Agencies’ Inventories and Hearing

Requests and Appeals in EEOC’s

Inventories for Fiscal Years 1991-1998

The Situation at Agencies

Table 3: Average Age of Cases in

Inventory at the Postal Service and

Nonpostal Agencies by Stage of the

Complaint Process for Fiscal Year 1998
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Because cases remained in inventory for lengthy periods, agencies

frequently did not meet the regulatory requirement that they dismiss or

accept a complaint, investigate an accepted complaint, and report the

investigation results to the complainant within 180 days from the filing of a

complaint (see app. IV, figure IV.4).9

 The proportion of cases pending the

initial acceptance or dismissal decision more for than 180 days stood at

32.5 percent in fiscal year 1998. At the Postal Service, 65.5 percent of cases

in the acceptance/dismissal stage had been in inventory more than 180

days at the end of fiscal year 1998 (see app. III, table III.3); the figure for

nonpostal agencies was 26.2 percent. Of the complaints pending

investigation, 48.3 percent had been in inventory more than 180 days. At

the Postal Service, 36.5 percent of cases in the investigation stage had been

in inventory more than 180 days at the end of fiscal year 1998 (see app. III,

table III.3); the figure for nonpostal agencies was 52 percent.

At EEOC, the average age of cases in both the agency’s inventory of

hearing requests and its inventory of appeals was higher in fiscal year 1998

than in fiscal year 1997 (see table 2). The average age of hearing requests

in inventory increased sharply, from 243 days in fiscal year 1997 to 320

days in fiscal year 1998. The figure for fiscal year 1998 is about 3 times

what is was in fiscal year 1993, when the average age of a hearing request

in inventory had reached a low of 105 days.

As a result of the rising age of hearing requests in inventory, a greater

proportion of these cases did not meet the requirement in EEOC’s

regulations that administrative judges issue a recommended decision

within 180 days of a request for a hearing. In fiscal year 1998, 56.2 percent

of the hearing requests had been in inventory longer than the 180-day time

limit, up from 50.3 percent the previous year. EEOC has had increasing

difficulty meeting the 180-day requirement since fiscal year 1993, when

13.3 percent of hearing requests had been in inventory longer than the 180

days. (See app. IV, figure IV.6.) The increasing age of EEOC’s hearing

request inventory has been a major factor in the size and age of cases in

agencies’ inventories awaiting a hearing before an administrative judge.

In contrast to hearing requests, table 2 shows a smaller increase in the

average age of appeals in EEOC’s inventory, from 285 days in fiscal year

1997 to 293 days in fiscal year 1998 (see app. IV, figure IV.5). Nonetheless,

the figure for fiscal year 1998 is more than 3 times what it was in fiscal

year 1992, when the average age of appeals in inventory was 87 days.

 

9

By agreement with the complainant, agencies can extend this period for an additional 90 days.

The Situation at EEOC
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Although EEOC regulations prescribe time limits for processing hearing

requests, they do not prescribe time limits for processing appeals.

However, one indicator of the time it takes EEOC to process appeals is the

percentage of cases remaining in inventory more than 200 days.10 EEOC’s

data show that in fiscal year 1998, 58.5 percent of the appeals cases

remained in inventory longer than 200 days, a slight increase from fiscal

year 1997, when this figure was 58 percent. However, the figures for fiscal

years 1997 and 1998 represent a substantial increase compared with fiscal

year 1991, when only about 3 percent of appeals had been in inventory

longer than 200 days. (See app. IV, figure IV.7.)

The size of the inventories and the age of the cases in them continued their

upward trend as agencies and EEOC did not keep up with the influx of

new cases. As discussed later in this report, the increase in the number of

complaints did not necessarily signify an equivalent increase in the actual

number of individuals filing complaints. Table 4 shows the trends in the

number of complaints filed with agencies and the number of hearing

requests and appeals filed with EEOC for fiscal years 1991 through 1998.

Number of cases

1991 1992 1993 1994 1995 1996 1997 1998

Percent

increase

Complaints 17,696 19,106 22,327 24,592 27,472 26,410 28,947 28,147 59.1

Hearing requests 5,773 6,907 8,882 10,712 10,515 10,677 11,198 12,218 111.6

Appeals 5,266 5,997 6,361 7,141 8,152 8,001 8,453 8,480 61.0

Source: GAO analysis of EEOC data.

At agencies, the overall number of complaints, which had increased from

17,696 in fiscal year 1991 to 28,947 in fiscal year 1997, declined by 2.8

percent, to 28,147 in fiscal year 1998.11 At the nonpostal agencies, the

number of new cases declined, from 14,621 in fiscal year 1997 to 13,750 in

fiscal year 1998. During this period, however, the number of new

complaints at the Postal Service increased slightly, from 14,326 to 14,397

(see app. III, table III.5). Overall, the number of complaints filed with

federal agencies in fiscal year 1998 was 59.1 percent higher than in fiscal

year 1991.

 10EEOC reports the age of cases in the appeals inventory along four time strata—1 to 100 days, 101 to

200 days, 201 to 365 days, and over 365 days.

11The figure for fiscal year 1997 is revised from the preliminary figure reported in GAO/GGD-98-157BR.

Agencies and EEOC

Unable to Keep Up

With Influx of New

Cases

Table 4: Number of Complaints Filed With Agencies and Hearing Requests and Appeals Filed With EEOC for Fiscal Years 1991-

1998
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At EEOC, requests for hearings, which increased from 5,773 to 11,198

during fiscal years 1991 to 1997, rose again, by 9.1 percent, to 12,218, in

fiscal year 1998. Appeals to EEOC of agency decisions, however, which

increased from 5,266 to 8,453 during fiscal years 1991 to 1997, increased

only slightly, by three-tenths of 1 percent, to 8,480, in fiscal year 1998.

Historically, the rate of growth in the number of hearing requests filed has

outpaced that of appeals. Compared with fiscal year 1991, the number of

hearing requests filed in 1998 was 111.6 percent higher; the comparable

figure for appeals was 61 percent. More recently, since fiscal year 1995, the

number of hearing requests filed increased by about 16 percent, while the

number of appeals filed increased by about 4 percent.

Postal workers continue to account for a large and disproportionate share

of complaints, hearing requests, and appeals. In fiscal year 1998, postal

workers represented about 32 percent of the federal workforce and

accounted for about 51 percent of complaints, about 47 percent of hearing

requests, and about 47 percent of appeals.12 (See app. III , tables III.4 and

III.5.)

With increasing caseloads since fiscal year 1991, agencies and EEOC have

been taking longer on average to process complaints, contributing to the

size and age of the inventories. Table 5 shows the average processing time

for complaints at agencies and for hearing requests and appeals at EEOC

for fiscal years 1991 to 1998.

Average processing time (days)

1991 1992 1993 1994 1995 1996 1997 1998

Complaints 341 349 366 356 305 379 391 384

Hearing

requests 173 192 183 154 187 234 277 320

Appeals 109 120 148 185 229 323 375 473

Source: GAO analysis of EEOC data.

The overall average number of days agencies took to close a case, which

had reached a low of 305 days in fiscal year 1995, was 384 days in fiscal

year 1998. This represented a slight improvement over fiscal year 1997’s

391-day average.

 12In GAO/GGD-98-157BR, we reported that the Postal Service Manager, EEO Compliance and Appeals,

identified two reasons for postal workers’ higher propensity to file complaints. First, postal workers

can simultaneously file an EEO complaint under the administrative process for federal employees and

an EEO grievance under their collective bargaining agreement. About 40 percent of postal workers

who have filed a complaint under the federal employee EEO complaint process have filed a grievance

about the same matter. Second, about 85 percent of postal workers are blue-collar workers covered

under collective bargaining agreements. This group of employees, according to the Postal Service

official, tends to file complaints more often than white-collar workers.

Processing Times Rose With

the Influx of New Cases

Table 5: Average Processing Time for

Complaints at Agencies and Hearing

Requests and Appeals at EEOC for

Fiscal Years 1991-1998

The Situation at Agencies
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Average closure time varied according to the type of closure action. In

addition to closing cases by dismissing them or by issuing final decisions

on their merits (with and without a hearing before an EEOC administrative

judge), an agency may settle a case with a complainant or a complainant

may withdraw his or her complaint. Table 6 shows average closure time

for each type of closure overall and at the Postal Service and nonpostal

agencies in fiscal year 1998 (see app. IV, figure IV.10 for average closure

time by type of case closure for all agencies for fiscal years 1991 to 1998).

Type of case closure

Dismissed Withdrawn Settled

Decision

without

hearing

Decision

with

hearing All cases

Postal

Service 141 261 355 477 749 322

Nonpostal

agencies 313 352 435 569 676 453

All federal

agencies 203 302 404 524 713 384

Note: Numbers represent days.

Source: GAO analysis of EEOC data.

Table 6 shows that, in general, the Postal Service processed cases more

quickly than nonpostal agencies in fiscal year 1998. One factor may have

been that the Postal Service investigated complaints more quickly

compared with nonpostal agencies. In fiscal year 1998, a complaint

investigation at the Postal Service took an average of 174 days from the

time a case was assigned to an investigator to when the investigation was

completed. The comparable figure at nonpostal agencies was 283 days.

Table 6 also shows that complaints with final agency decisions involving a

hearing took the longest to close. This figure is affected by EEOC’s

performance because a hearing precedes an agency’s final decision; the

longer EEOC takes to process a hearing request, the longer it will take an

agency to make its final decision. As will be discussed below, EEOC has

been taking longer to process hearing requests.

The increases in the amount of time to process cases were most apparent

at EEOC. The average amount of time EEOC took to process a hearing

request, which had increased from 173 days in fiscal year 1991 to 277 days

in fiscal year 1997, increased further, to 320 days, in fiscal year 1998, well

in excess of the 180-day requirement in regulations. Also, the time EEOC

took to adjudicate an appeal, which had increased from 109 days in fiscal

year 1991 to 375 days in fiscal year 1997, rose substantially in fiscal year

1998 to 473 days—or by 26 percent.

Table 6: Average Complaint Closure

Time by Type of Case Closure at the

Postal Service and Nonpostal Agencies

in Fiscal Year 1998

The Situation at EEOC
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Because of the length of time taken by agencies and EEOC to process

cases, parties to a case traveling the entire complaint process—from

complaint filing through hearing and appeal—could expect the case to

take 1,186 days, based on fiscal year 1998 data. In fiscal year 1997, this

figure was 1,095.

The implications of these trends, at least in the short run, are that

inventories of unresolved cases may grow even larger, particularly at

EEOC, and that cases, as well as the conflicts underlying these cases, may

take even longer to resolve than they currently do. The long-term outlook

is uncertain. Only when EEOC and agencies are able to process and close

more cases than they receive will progress be made toward reducing

backlogs. The size of the caseloads will be influenced by the effect of

revisions to the complaint process regulations and procedures, while

agencies’ and EEOC’s capacity to process cases will be affected by

available resources. EEOC projects that the number of new cases will

continue to rise and exceed its capacity to process them, resulting in yet

higher inventories and case processing times. EEOC’s projections,

however, do not take into account how complaint process revisions may

affect caseload trends and resource needs.

In our July 1998 report about rising trends in EEO complaint caseloads, we

reported that the increase in the number of discrimination complaints

could be attributed to several factors, according to EEOC, dispute

resolution experts, and officials of federal and private-sector

organizations. One factor that experts and officials cited for the increase in

complaints was downsizing, which resulted in appeals of job losses and

reassignments. A second factor was the Civil Rights Act of 1991, which

motivated some employees to file complaints by allowing compensatory

damage awards of up to $300,000 in cases involving unlawful, intentional

discrimination. A third factor was the Americans With Disabilities Act of

1990, which expanded discrimination protection.13 EEOC and Postal

Service officials also said that the current regulations governing the EEO

complaint process, implemented in October 1992, were a factor because

they provided improved access to the complaint process.

In a report we issued in May 1999, however, we said that there were

several factors indicating that an increase in the number of complaints did

not necessarily signify an equivalent increase in the actual number of

 13While federal workers were protected under the Rehabilitation Act of 1973, the publicity surrounding

the Americans With Disabilities Act made federal workers more aware of their protections under the

Rehabilitation Act, according to EEOC and Postal Service officials.

Implications of the

Trends in Inventories,

New Cases, and

Processing Times

Factors Affecting the Size of

the Complaint Caseload
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Page 12 GAO/GGD-99-128 EEO Complaint Caseloads

individuals filing complaints.14 First, an undetermined number of federal

employees have filed multiple complaints.15 EEOC officials and

representatives of the Council of Federal EEO and Civil Rights Executives

said that, while they could not readily provide figures, it has been their

experience that a small number of employees—often referred to as “repeat

filers”—account for a disproportionate share of complaints. A Postal

Service official said that between 60 and 70 employees account for every

100 complaints filed. Additionally, an EEOC workgroup that reviewed the

federal employee discrimination complaint process reported that the

number of cases in the system was “swollen” by employees filing “spin-off”

complaints—new complaints challenging the processing of existing

complaints. Further, the work group found that the number of complaints

was “unnecessarily multiplied” by agencies fragmenting some claims

involving a number of different allegations by the same employee into

separate complaints, rather than consolidating these claims into one

complaint. In addition, there has been an increase in the number of

complaints alleging reprisal, which, for the most part, involve claims of

retaliation by employees who have previously participated in the

complaint process.

Further, in past reports and testimonies, we noted, among other things,

that the discrimination complaint process was burdened by a number of

cases that were not legitimate discrimination complaints; some were

frivolous complaints or attempts by employees to get a third party’s

assistance in resolving workplace disputes unrelated to discrimination.16

Similarly, EEOC reported in its 1996 study that a “sizable” number of

complaints might not involve discrimination issues but instead reflect

basic communications problems in the workplace. EEOC said that such

issues may be brought into the EEO process because of a perception that

there is no other forum to air general workplace concerns.17 The agency

 

14Equal Employment Opportunity: Data Shortcomings Hinder Assessment of Conflicts in the Federal

Workplace (GAO/GGD-99-75, May 4, 1999).

15EEOC does not collect data on the number of employees who file complaints, nor on how often

individual employees complain.

16Federal Employee Redress: An Opportunity for Reform (GAO/T-GGD-96-42, Nov. 29, 1995); Federal

Employee Redress: A System in Need of Reform (GAO/T-GGD-96-110, Apr. 23, 1996); and Civil Service

Reform: Redress System Implications of the Omnibus Civil Service Reform Act of 1996 (GAO/T-GGD96-160, July 16, 1996).

17Only a small proportion of agency and EEOC decisions contains a finding of discrimination. In fiscal

year 1998, for example, discrimination was found in 1.4 percent of the cases agencies decided on the

merits without a hearing, 7.2 percent of the cases EEOC administrative judges decided, and in 3.4

percent of appeals EEOC decided.
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Page 13 GAO/GGD-99-128 EEO Complaint Caseloads

also said that there is little question that these types of issues would be

especially conducive to resolution through ADR processes.18

EEOC will be implementing regulatory and procedural changes beginning

in November 1999 to deal with some of the factors contributing to the

volume of complaints flowing through the process. One change will allow

agencies and administrative judges to dismiss spin-off complaints. Another

change will allow agencies and administrative judges to dismiss

complaints in which employees are abusing the process. The revised

regulations and EEOC’s policies will deal with the problem of fragmented

complaints. In addition, EEOC will require agencies to make ADR

processes available to complainants.19

Among the factors that can affect inventory levels and case processing

times is the relationship between the influx of cases and the capacity of

staff to process them. Data that EEOC reports in the Federal Sector Report

on EEO Complaints Processing and Appeals does not allow a precise

comparison of the number of staff at agencies to caseloads at various

stages of the complaint process.20 However, the data enable a comparison

of EEOC’s hearing and appeal caseloads to the number of nonsupervisory

administrative judges and attorneys available to process these cases.

These data show that as the overall number of hearing requests received

each year increased by 111.6 percent, from 5,773 in fiscal year 1991 to

12,218 in fiscal year 1998 (see table 4, p. 8), the number of administrative

judges available for hearings increased at a lower rate (41.5 percent)

during this period, from 53 to 75. These data also show that as the number

of appeals increased by 61 percent, from 5,266 in fiscal year 1991 to 8,480

 

18ADR Study, U.S. Equal Employment Opportunity Commission, Office of Federal Operations, Oct.

1996.

19In Alternative Dispute Resolution: Employers’ Experiences With ADR in the Workplace (GAO/GGD97-157, Aug. 12, 1997), we reported that 43 (49 percent) of 87 agencies responding to a 1996 EEOC

survey made ADR processes available. We also said that ADR availability was not pervasive or

widespread within federal agencies reporting some ADR capability. More recently, an EEOC official

told us that 57 (52 percent) of 109 agencies responding to a 1998 survey made ADR available.

20EEOC limits its reporting of agency staffing to the number of counselors, counselor/investigators, and

investigators. These numbers do not include agency staff making decisions about the merits of

complaints. EEOC reported that the number of full-time, part-time, and collateral-duty staff declined

from 16,169 in fiscal year 1992 (fiscal year 1991 data were not reported) to 12,352 in fiscal year 1997,

the latest year for which staffing data were available. The reductions were mainly among part-time and

collateral-duty staff whose levels decreased from 15,418 to 10,794. At the same time, the number of fulltime counselors, counselor/investigators, and investigators was higher in fiscal year 1997 than in fiscal

year 1992—1,558 versus 751. Some agencies also use contract investigators. In fiscal year 1992,

contract investigators performed 2,381 investigations; the figure for fiscal year 1997 was 4,783. The

number of contract investigations increased to 5,192 in fiscal year 1998.

EEOC’s Capacity to Process

Cases
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Page 14 GAO/GGD-99-128 EEO Complaint Caseloads

in fiscal year 1998 (see table 4, p. 8), the number of attorneys processing

appeals actually declined, from 40 in fiscal year 1991 to 39 during fiscal

years 1992 to 1998. Although EEOC officials recognized the need for

additional staff to process hearings and appeals, they said that requested

funds for the needed positions were not appropriated.

At EEOC, the hearings and appeals inventories rose because the average

caseload for each administrative judge and attorney outpaced increases in

their productivity. The number of hearing requests received each year per

administrative judge rose, from 109 in fiscal year 1991 to 163 by fiscal year

1998. The hearings inventory grew larger because although the average

number of cases processed and closed each year per administrative judge

increased, this figure was, except for fiscal year 1993, always less than the

average number of requests received. In fiscal year 1991, administrative

judges processed and closed 95 hearing requests, a figure that increased to

135 by fiscal year 1998.

The situation for appeals was similar. The number of appeals received

each year per attorney increased, from 133 in fiscal year 1991 to 217 by

fiscal year 1998. The appeals inventory grew because the average number

of cases processed and closed each year per attorney, was, except for

fiscal year 1991, always less than the average number of appeals received.

In fiscal year 1991, attorneys processed and closed an average of 133

cases, a figure that increased to 192 by fiscal year 1998.

To deal with the imbalance between new cases and closures, EEOC’s fiscal

year 1999 budget provided for an increase in its administrative judge and

appeals attorney corps. Under the fiscal year 1999 budget, the authorized

number of administrative judges increased by 19, from 75 to 94, while the

authorized number of appeals attorneys increased by 14, from 39 to 53.21

Even with these added resources, the hearings and appeals inventories

may continue to rise unless the flow of new cases is reduced. EEOC

estimates that with the full complement of administrative judges on board

in fiscal year 2000, it will be able to process and close 11,280 hearing

requests, or 120 cases per judge, each year. This figure is 938 cases less

than the 12,218 hearing requests EEOC received in fiscal year 1998. If, for

example, the number of hearing requests received in fiscal year 2000

remained at fiscal year 1998 levels, EEOC’s hearings inventory would

increase by 938 cases during the year, while the average time EEOC takes

 

21As of June 2, 1999, there were 95 full-time and 5 part-time administrative judges and, as of June 25,

1999, 50 appeals attorneys available to process hearing requests and appeals.

New Cases Surpass Closures

Despite Productivity Gains

Additional Inventory Growth

Expected
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Page 15 GAO/GGD-99-128 EEO Complaint Caseloads

to process a hearing request would grow by about 30 days. Over 5 years,

with no change in the number of new cases received each year or

resources to process them, EEOC’s hearings inventory could increase by

4,690 cases, while adding 150 days to the average processing time.

Similarly, when the full complement of appeals attorneys is on board by

fiscal year 2000, EEOC estimates it will be able to process and close 7,685

appeals, or 145 cases per attorney, each year. This figure, however, is 795

cases less than the 8,480 appeals filed in fiscal year 1998. If, for example,

the number of appeals filed in fiscal year 2000 remained at fiscal year 1998

levels, EEOC’s appeals inventory would increase by 795 cases during that

year, while the average processing time would increase by about 37 days.

Over 5 years, with no change in the number of new cases filed each year or

resources to process them, EEOC’s appeals inventory could increase by

3,975, while adding about 186 days to the average processing time.

While our analysis assumed no increase in the number of new cases,

EEOC’s fiscal year 2000 budget request projects that incoming hearing

requests and appeals would rise at an annual rate of 3 percent, and exceed

the number of cases it can close. As a result, according to the agency,

hearings and appeals inventories and processing times will continue to

climb, further affecting the agencies’ inventories and case processing

times. To deal with this situation, EEOC’s fiscal year 2000 budget proposal

requests funding for 19 additional administrative judges to process hearing

requests and 13 additional attorneys to process appeals.22 The agency

projects that with these additional resources, the hearings and appeals

inventories and processing times would initially decline in fiscal year 2000,

only to begin rising again in fiscal year 2004.

Neither our analysis nor EEOC’s projections and requested funding

increase take into account, however, the possible effects of changes to

program regulations and procedures intended to reduce the number of

cases flowing into and through the complaint process. Since EEOC’s

workload is dependent on the number of cases in the pipeline at agencies,

it is important to understand how the program changes are likely to affect

caseloads at agencies. The requirement that agencies offer ADR processes

to employees, including in the counseling phase before a formal complaint

is filed, should resolve some workplace disputes without a complaint being

 

22EEOC is also requesting funding for eight other positions to support the hearing and appeals

processes.

Effects of Revisions to

Complaint Process Not Known
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filed and resolve other disputes in the early complaint stages.23 Other

changes allowing dismissal of spin-off complaints and other complaints in

which an employee is believed to be abusing the process should halt the

processing of these cases early in the process and possibly discourage the

filing of such complaints. In addition, policies to prevent agencies from

fragmenting cases should also reduce the number of new complaints.

However, although EEOC designed its changes to program regulations and

procedures to reduce the flow of new cases, it has not estimated the likely

effect of these changes on the volume of complaints. EEOC officials

explained that they had been deferring developing estimates until the

regulations had been approved because of how the details of the final

regulations could affect caseload estimates. They also said that although

one goal of the regulations is to reduce caseloads, another goal is to

improve the fairness of the process. The EEOC officials said that one

measure to improve fairness is to remove agencies’ ability to reject or

modify administrative judges’ decisions in arriving at final decisions. The

officials said that complainants could view this change as giving the

administrative judges more authority, and they speculated that more

complainants might seek a hearing.

Estimates of the expected changes in complaint levels are important

because a decrease in new complaints would affect how quickly EEOC

might be able to reduce its inventories, and thus how many, if any,

additional staff would be needed and for how long. EEOC’s Compliance

and Control Division Director said that it would be appropriate to consider

the effects of these changes when the agency prepares its fiscal year 2001

budget request. Because the changes could begin affecting complaint

levels in fiscal year 2000 and because any new staff, if not hired on a

temporary basis, could be with EEOC a long time, estimates of likely

changes in complaint levels also could be important to congressional

consideration of EEOC’s future budget requests.

EEOC also has not completed the development of the measures and

indicators that it will use in the future to gauge the actual effect of the

 

23In Alternative Dispute Resolution: Employers’ Experiences With ADR in the Workplace (GAO/GGD97-157, Aug. 12, 1997), we reported that data from two federal agencies we studied indicated that ADR

processes, by resolving discrimination complaints in their early stages, had reduced the number of

formal complaints filed as well as the time required for seeing them through to resolution. More recent

data from the Postal Service showed that during the first 10 months of fiscal year 1999, a formal

complaint was filed in only 1,081 (about 17 percent) of the 6,252 cases mediated in the counseling or

precomplaint phase under its REDRESS program. In contrast, about 72 percent of the 8,314 cases not

mediated resulted in a formal complaint being filed. Overall, the data show that the number of

complaints filed by postal workers during the first 10 months of fiscal year 1999 is about 17 percent

below the same period in fiscal year 1998 (7,050 versus 8,522).
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Page 17 GAO/GGD-99-128 EEO Complaint Caseloads

changes. In its fiscal year 1999 annual performance plan, EEOC said that it

would develop measures and indicators for assessing the effectiveness of

these revisions, which, according to the agency’s fiscal year 2000 Annual

Performance Plan, would be implemented in fiscal year 2000.24

Rising inventory levels of unresolved EEO complaints and lengthy case

processing times to resolve these workplace disputes remain stubborn

problems for agencies and EEOC. The struggle of nonpostal agencies was

especially evident in that their inventories rose by almost 8 percent in

fiscal year 1998 despite a 6 percent decline in new complaints. Similarly,

despite increases in its productivity, EEOC’s appeals inventory increased

by almost 10 percent in fiscal year 1998, even though the number of

appeals filed remained almost unchanged. At the same time, EEOC’s

inventory of hearing requests rose by almost 20 percent, about twice the

rate of increase in new hearing requests that the agency received.

How long present conditions will continue, and whether they will improve

or deteriorate further, depends on the ability of agencies and EEOC to

process cases currently in the complaint pipeline as well as on the volume

of new complaints entering the pipeline in the future. Future trends and,

therefore, agencies’ and EEOC’s resource needs, are likely to be affected

by the revisions to the complaint process. However, EEOC has not

developed estimates of the extent to which revisions to complaint process

regulations and procedures may affect the flow of cases into and through

the process. Among the changes, the requirement that agencies offer ADR

to complainants could reduce the number of new cases filed, or resolve

disputes in the early stages. In addition, other changes to be implemented

dealing with fragmenting of complaints, spin-off complaints, and abuse of

process could reduce the number of new complaints or short-circuit them

early in the process.

EEOC’s request for additional funding for attorneys and judges and the

implementation of changes to program regulations and procedures in

November 1999 lend urgency to gaining an understanding of the likely

effects of the proposed changes on the complaint process and complaint

inventories. In addition, until the measures and indicators promised in

EEOC’s fiscal year 1999 Annual Performance Plan are developed and

implemented, the actual effect of the revisions on the EEOC complaint

process will be difficult to track. Estimates of the effect of the changes

combined with anticipated productivity levels could be used to further

estimate the resources needed to reduce EEOC’s inventory of hearing

 

24The annual performance plans are required by the Government Performance and Results Act.

Conclusions
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Page 18 GAO/GGD-99-128 EEO Complaint Caseloads

requests to levels that would allow the average case to be processed within

the 180-day requirement in regulations.

In addition, current regulations do not prescribe a processing time

standard for appeals, which could be used to establish and develop

estimates of the resources needed to reduce the average appeal processing

time to an acceptable level of timeliness. In the case of both hearing and

appeal processing, the estimates could be useful in determining how many,

if any, additional staff are needed to reduce the backlogs and whether the

staff should be a permanent or temporary addition to EEOC’s workforce.

Given the size of the backlogs, estimates for reducing them to acceptable

levels over different time frames could allow EEOC and Congress to weigh

the trade-offs between additional cost and the rapidity with which the

inventory of cases is resolved. Measures and indicators to assess the actual

effect of changes in program regulations should be adopted before the

changes are implemented to ensure that consistent data are collected from

the start and to ensure that systems are in place to generate valid and

reliable data.

To provide Congress with a clear picture of future caseload trends and the

resources that are needed to deal with current backlogs, as well as the

volume of cases expected in the future, we recommend that the EEOC

Chairwoman take steps to (1) develop estimates of the effects of the

forthcoming changes in program regulations and procedures on agencies’

and EEOC’s caseloads and (2) complete development of measures and

indicators to track and assess the impact of these revisions on caseload

trends. We also recommend that the Chairwoman use these data to

develop estimates, under various time frames, of the resources needed to

reduce its average hearings processing time to meet the 180-day

requirement in regulations. We further recommend that the Chairwoman

establish a policy of an acceptable level of timeliness for processing

appeals and develop estimates, under various time frames, of the

resources needed to reduce its average appeals processing time to meet

this standard.

We received comments on a draft of this report from EEOC and the Postal

Service. The EEOC Chairwoman said in her written comments (see app. V)

that she shared our concerns that complaint inventories are too high and

that federal employees wait far too long for their complaints to be

processed by their agencies and EEOC. She said that analyses of the kind

in our 1998 report on rising EEO complaint caseloads in the federal sector

had persuaded her that bold steps were necessary to bring about

Recommendations

Agency Comments and

Our Evaluation
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Page 19 GAO/GGD-99-128 EEO Complaint Caseloads

improvements.25 She said that, in addition to the changes in regulations,

EEOC is implementing a comprehensive, strategic approach to link the

hearings and appeals programs with strong oversight, technical assistance,

and educational initiatives. These efforts are to include on-site reviews,

which EEOC believes are one of the most important vehicles with which to

focus on and correct root causes of persistent problems. Also, the

Chairwoman said that with additional resources, EEOC would increase its

efforts on conflict prevention and early intervention, since these are the

most cost-effective ways to reduce inventories. Further, the Chairwoman

pointed out that EEOC, with the National Partnership for Reinventing

Government (NPR), is cosponsoring the Interagency Federal EEO Task

Force that will look into ways to enhance the fairness, efficiency, and

effectiveness of the federal employee EEO complaint process.

EEOC also responded to the first three of our four recommendations that

it (1) develop estimates of the effects of changes in regulations on

caseloads, (2) complete development of measures and indicators to track

and assess the impact of these revisions, and (3) develop estimates of the

resources needed under various time frames to reduce hearings and

appeals processing times. EEOC said that right now it would be premature

and highly speculative for the agency to venture guesses on what the

actual experiences under the revised regulations might be. In addition,

EEOC said that it was not possible to develop measures and indicators for

assessing the effectiveness of the revisions to the federal sector EEO

complaint process before the draft regulations were approved. However,

with the publication of the final rules in the Federal Register on July 12,

1999, EEOC said that it expects to complete development of the measures

and indicators by the end of fiscal year 1999. The Chairwoman added,

however, that other complex issues must be resolved, including how

baseline data will be collected and what data collection method will be

used. Consequently, she said that the first year for which data will be

collected on experiences under the revised regulations will be fiscal year

2001. She said that when these data are available at the end of calendar

year 2001, it would be possible to estimate resource requirements under

various time frames. The Chairwoman further said that these data would

be used to prepare EEOC’s fiscal year 2004 budget request, which would

be submitted to the Office of Management and Budget in September 2002

and to Congress in early 2003.

We continue to believe that in order for Congress to carry out its oversight

and appropriation responsibilities and make informed budget decisions, it

 

25GAO/GGD-98-157BR.
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needs timely estimates from EEOC of how changes in the complaint

process may affect caseloads and resource requirements. Further, we

believe congressional decisionmaking would benefit from EEOC’s best

estimate of the resources needed under various time frames to reduce

hearings and appeals processing times to acceptable levels. With such

estimates, Congress could consider options to deal with this serious

situation.

We recognize that early estimates may be inexact. However, without any

estimate of the effect the new regulations may have on caseloads and of

information on how quickly, if at all, additional staff might be able to

reduce the current case backlogs, Congress has no basis to judge whether

requested resources to increase staffing are reasonable. Although initial

estimates of necessity involve considerable judgment, we believe it would

be better to offer estimates than to provide no perspective on the

regulations’ anticipated effect. Estimation is an iterative process, and

EEOC can improve the precision of its estimates as more and better data

become available. The Chairwoman said that EEOC will explore

alternative means for obtaining feedback on the kinds of changes that may

flow from the revised regulations. In addition to EEOC examining its own

caseloads, such alternatives, we believe, could include obtaining data

during on-site visits, through the NPR/EEOC Interagency Federal EEO

Task Force, or through informal surveys of agencies. As EEOC and

agencies scrutinize inventories to see how the new provisions apply to

existing cases, such data-gathering initiatives could yield increasingly

reliable and timely information on the effects of the new provisions.

In response to our fourth recommendation that an acceptable level of

timeliness be established for the processing of appeals, the Chairwoman

said that 180 days is an appropriate goal. She did not say how this goal

might be operationalized. We believe that such a goal would carry more

significance and accountability if it were articulated in writing as a policy,

such as by inclusion in EEOC’s annual performance plan.

In oral comments on a draft of this report made on July 7, 1999, the Postal

Service Manager, EEO Compliance and Appeals, concurred with our

observations. He added that the Postal Service will be in compliance with

the new EEOC regulation requiring that ADR be available to complainants

because of its REDRESS (Resolve Employment Disputes, Reach Equitable

Solutions Swiftly) program.

In a separate discussion, the Postal Service’s National REDRESS Program

Manager said that the program, which uses outside mediators in the
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Page 21 GAO/GGD-99-128 EEO Complaint Caseloads

precomplaint stage, was fully implemented as of July 1999. She provided

statistics showing that during the first 10 months of fiscal year 1999—a

period during which the program was still being rolled out—there were

about 17 percent fewer formal EEO complaints, compared with the same

period in fiscal year 1998 (7,050 versus 8,522). She and the EEO

Compliance and Appeals Manager said this decline was in “large measure”

due to the REDRESS program. The EEO Compliance and Appeals Manager

also said that the Postal Service was expanding ADR to complaints

awaiting a hearing before an EEOC administrative judge. He said that pilot

programs have shown promise in reducing the inventory of complaints at

this stage, with about one-third of the cases reviewed found to be

candidates for settlement and another one-third found to be candidates for

mediation. The remaining one-third, he said, will probably go to hearing.

The official said that agencies have a responsibility to address these cases

and can play an important role in reducing not only their own caseloads,

but EEOC’s as well.

The implications of the Postal Service’s experience with ADR, if the

reported results are sustained, are significant for several reasons. First,

they show that an agencywide ADR program to resolve disputes at an early

stage can reduce the number of formal complaints. Second, because postal

workers account for about half of the EEO complaints filed by federal

employees, a substantial reduction in the number of formal complaints by

postal workers could mean a reduction in the number of cases entering

EEOC’s hearings and appeals pipeline. Third, the Postal Service’s limited

experience, under its pilot programs, of applying ADR to cases awaiting a

hearing show that some portion of this inventory can be resolved without

using EEOC hearing resources.

Although the Postal Service has not had broad experience with applying

ADR to cases awaiting a hearing, the experiences of the Merit Systems

Protection Board (MSPB) may be instructive to agencies and EEOC in

establishing dispute resolution strategies and allocating resources. MSPB

has had a long-established policy of trying to settle cases it does not

dismiss on jurisdictional or timeliness grounds. Over the past 10 years,

MSPB has avoided hearings by settling about half of employee appeals of

personnel actions.

We are sending copies of this report to Senators Daniel K. Akaka, Thad

Cochran, Joseph I. Lieberman, and Fred Thompson; and Representatives

Robert E. Andrews, John A. Boehner, Dan Burton, William L. Clay, Chaka

Fattah, William F. Goodling, Steny H. Hoyer, Jim Kolbe, John M. McHugh,

David Obey, Harold Rogers, Joe Scarborough, Jose E. Serrano, Henry A.
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Page 22 GAO/GGD-99-128 EEO Complaint Caseloads

Waxman, and C. W. Bill Young in their capacities as Chair or Ranking

Minority Members of Senate and House Committees and Subcommittees.

We will also send copies to the Honorable Ida L. Castro, Chairwoman,

EEOC; the Honorable William J. Henderson, Postmaster General; the

Honorable Janice R. Lachance, Director, Office of Personnel Management;

the Honorable Jacob Lew, Director, Office of Management and Budget; and

other interested parties. We will make copies of this report available to

others on request.

If you or your staff have any questions concerning this report, please

contact me or Assistant Director Stephen Altman on (202) 512-8676. Other

major contributors to this report were Anthony P. Lofaro, Gary V. Lawson,

and Sharon T. Hogan.

Michael Brostek

Associate Director, Federal Management

and Workforce Issues
Page 23 GAO/GGD-99-128 EEO Complaint Caseloads
Page 24 GAO/GGD-99-128 EEO Complaint Caseloads

Contents

1 Letter

Appendix I 28

Scope and

Methodology

Appendix II 30

Processing Federal

Employee EEO

Complaints

Appendix III 32

Selected Complaint

Data on U.S. Postal

Service

Appendix IV 35

Selected Federal

Sector EEO Complaint

Data for Fiscal Years

1991 to 1998

Appendix V 47

Comments From the

U.S. Equal

Employment

Opportunity

Commission

Tables Table 1: Inventories of Complaints at Agencies and

Hearing Requests and Appeals at EEOC for Fiscal

Years 1991-1998

5
Contents

Page 25 GAO/GGD-99-128 EEO Complaint Caseloads

Table 2: Average Age of Complaints in Agencies’

Inventories and Hearing Requests and Appeals in

EEOC’s Inventories for Fiscal Years 1991-1998

6

Table 3: Average Age of Cases in Inventory at the Postal

Service and Nonpostal Agencies by Stage of the

Complaint Process for Fiscal Year 1998

6

Table 4: Number of Complaints Filed With Agencies and

Hearing Requests and Appeals Filed With EEOC for

Fiscal Years 1991-1998

8

Table 5: Average Processing Time for Complaints at

Agencies and Hearing Requests and Appeals at EEOC

for Fiscal Years 1991-1998

9

Table 6: Average Complaint Closure Time by Type of

Case Closure at the Postal Service and Nonpostal

Agencies in Fiscal Year 1998

10

Table III.1: Total and Postal Service Inventories of

Compliants, Hearing Requests, and Appeals and Postal

Service as a Percentage of the Totals for Fiscal Years

1991-1998

32

Table III.2: Average Age (Days) of Complaints in the

Postal Service's Inventory Since Complaint Filed, by

Stage of the Complaint Process for Fiscal Years 1991-

1998

32

Table III.3: Percentage of Postal Workers' Complaints

Pending Dismissal/Acceptance and Investigation More

Than 180 Days for Fiscal Years 1991-1998

33

Table III.4: Postal Workers as a Percentage of the

Federal Workforce for Fiscal Years 1991-1998

33

Table III.5: Total and Postal Workers’ Complaints,

Hearing Requests, and Appeals and Postal Workers as a

Percentage of Total Complaints, Hearing Requests, and

Appeals for Fiscal Years 1991-1998

33

Table III.6: Postal Service Complaint Processing Time in

Days by Closure Category

34

Figure IV.1: Agencies’ Complaint Inventories Continue to

Grow

35

Figure IV.2: EEOC’s Hearings and Appeals Inventories

Continue to Increase

36

Figure IV.3: Average Age of the Complaint Inventory at

Agencies FYs 1991 - 1998

37

Figures

Figure IV.4: Frequently, Agencies Did Not Dismiss/Accept

and Investigate Complaints Within 180 days

38
Contents

Page 26 GAO/GGD-99-128 EEO Complaint Caseloads

Figure IV.5: Average Age of EEOC’s Hearings and

Appeals Inventories Has Increased

39

Figure IV.6: Proportion of EEOC’s Hearings Inventory

Older Than 180 Days Has Risen

40

Figure IV.7: More Appeals Have Been in Inventory For

Longer Periods of Time at EEOC

41

Figure IV.8: The Number of Complaints Filed With

Agencies Has Generally Increased

42

Figure IV.9: Hearings Requested and Appeals Filed Have

Increased at EEOC

43

Figure IV.10: Complaint Processing Time at Agencies FYs

1991-1998

44

Figure IV.11: Average Time For Agencies’ Complaint

Investigations

45

Figure IV.12: EEOC Processing Times For Hearings and

Appeals Continue to Increase

46

Abbreviations

ADR alternative dispute resolution

EEO equal employment opportunity

EEOC Equal Employment Opportunity Commission
Page 27 GAO/GGD-99-128 EEO Complaint Caseloads
Appendix I

Scope and Methodology

Page 28 GAO/GGD-99-128 EEO Complaint Caseloads

As with our previous report1 about complaint caseloads, we developed

information on complaints falling within the jurisdiction of the Equal

Employment Opportunity Commission (EEOC), and not the Merit Systems

Protection Board (MSPB), 2 because (1) the vast majority of discrimination

complaints fall within EEOC's jurisdiction and (2) concerns about case

inventories and processing times raised in hearings before the House

Subcommittee on Civil Service focused on complaints within EEOC's

jurisdiction.

We updated (1) trends in the size of inventories and the age of cases in

inventory at the various stages of the equal employment opportunity

(EEO) complaint process and (2) trends in the number of complaints filed

by federal employees and the time taken by agencies and EEOC to process

them to include fiscal years 1991 through 1998. Agencies' complaint data

for fiscal year 1998, which EEOC provided and which we used in our

analysis, were preliminary. We selected 1991 as a base year because it

preceded intensive government downsizing, the implementation of new

laws expanding civil rights protections and remedies, and the

implementation of new regulations governing the federal employee EEO

complaint process. Because postal workers accounted for about half the

complaints filed since fiscal year 1995, we separately analyzed data

reported by the Postal Service in order to compare statistics for the postal

workforce with the nonpostal workforce.

To update and analyze information about (1) the trends in the size and age

of complaint inventories and (2) the number of complaints filed by federal

employees and the amount of time taken by federal agencies and EEOC to

process them, we obtained data reported (1) to EEOC by the Postal

Service and other agencies and (2) by EEOC in its annual Federal Sector

Report on EEO Complaints Processing and Appeals. We did not verify the

data in EEOC's reports or data provided by the Postal Service. To make

observations about the implications of the trends, we drew upon our

analysis of the trend data, our past work, and discussions with EEOC

officials. In addition, we reviewed EEOC’s budget request for fiscal year

2000 and its annual performance plans for fiscal years 1999 and 2000.3

 We

 

1

Equal Employment Opportunity: Rising Trends in EEO Complaint Caseloads in the Federal Sector

(GAO/GGD-98-157BR, July 1998) page 6.

2

MSPB adjudicates, among other things, employee appeals of firings or suspensions of more than 14

days, including cases in which an appellant alleges that the firing or suspension occurred because of

unlawful employment discrimination. These are known as "mixed cases." MSPB's decisions in mixed

cases may be reviewed by EEOC.

3

The annual performance plans are required by the Government Performance and Results Act.
Appendix I

Scope and Methodology

Page 29 GAO/GGD-99-128 EEO Complaint Caseloads

also reviewed changes to the regulations governing the federal employee

complaint process (29 C.F.R. part 1614) that are to be implemented

beginning in November 1999.

We have previously noted limitations to the data presented in our reports

because of concerns about the quality of data available for analysis.4

Although we have no reason to question EEOC’s statistics about its own

hearings and appeals activities, we had identified errors and

inconsistencies in the data on agencies’ inventory levels and on the age of

cases in inventory. Because EEOC had not verified the data it received

from agencies, it is possible that other data problems may have existed.

EEOC corrected the errors we identified and, in response to a

recommendation we made, said that it would take action to address our

concerns about data consistency, completeness, and accuracy. Before

providing the fiscal year 1998 agency data to us, EEOC reviewed agencies’

hard-copy submissions of complaint statistics and compared these data to

statistics the agencies provided in an automated format. EEOC also tested

the accuracy of its computer program to aggregate the data submitted by

agencies. In response to our recommendation in an earlier report, before it

publishes the complaint statistics in the fiscal year 1998 Federal Sector

Report on EEO Complaints Processing and Appeals, EEOC said it would

visit selected agencies to assess the reliability of the reported data. On

balance, total caseload data currently available, while needing further

quality assurance checks, present useful information on the volume of

complaints actually being processed in the federal EEO complaint system.

We performed our work in Washington, D.C., from March through May

1999 in accordance with generally accepted government auditing

standards.

 

4

Equal Employment Opportunity: Data Shortcomings Hinder Assessment of Conflicts in the Federal

Workplace (GAO/GGD-99-75, May 4, 1999); GAO/GGD-98-157BR; Equal Employment Opportunity:

Administrative Judges’ Recommended Decisions and Agencies’ Actions (GAO/GGD-98-122R, June 10,

1998).
Appendix II

Processing Federal Employee EEO

Complaints

Page 30 GAO/GGD-99-128 EEO Complaint Caseloads

Agencies and EEOC process federal employees’ EEO complaints under

regulations1

 promulgated by EEOC, which also establish processing time

standards. Employees unable to resolve their concerns through counseling

can file a complaint with their agency, which either dismisses or accepts it

(the first stage) and, if the complaint is accepted, conducts an investigation

(the second stage). Agencies are to decide whether to accept a complaint,

investigate it, and report investigation results within 180 days from the

complaint’s filing.

After receiving the investigation results, an employee who pursues a

complaint has two choices: (1) request a hearing before an EEOC

administrative judge (the third stage) who issues a recommended decision,

which the agency can accept, reject, or modify in making its final decision

or (2) forgo a hearing and ask for a final agency decision (the fourth stage).

An employee has 30 days to make this decision. When a hearing is

requested, the administrative judge is to issue a recommended decision

within 180 days of the request. An agency is to issue its final decision

within 60 days of receiving an administrative judge’s recommendation or a

request for a final decision. Up to this point, EEOC standards have allowed

complaint processing to take up to 270 days without a hearing, 450 days

with one.

An employee dissatisfied with a final agency decision or its decision to

dismiss a complaint may appeal to EEOC, which is to conduct a de novo2

review (the fifth stage). The employee has 30 days to file an appeal, but

regulations do not establish time standards for EEOC’s review. The final

(sixth) stage within the administrative process is that the complainant or

agency may request EEOC to reconsider its decision from the appeal

within 30 days of receiving the decision. However, regulations do not

establish time standards for the EEOC’s reconsideration.

EEOC will be implementing revisions to the regulations, including changes

to hearing and appeal procedures, beginning in November 1999. Under the

new rules, administrative judges will continue to issue decisions on

complaints referred to them for hearings. However, agencies will no longer

be able to modify these decisions. Instead, as its final action (as final

decisions will be called), an agency will issue a final order indicating

whether or not it will fully implement the administrative judge’s decision.

If the agency does not fully implement the decision, it will be required to

 

1

29 C.F.R. part 1614.

2

A complete review of all evidence from the beginning of a case.
Appendix II

Processing Federal Employee EEO Complaints

Page 31 GAO/GGD-99-128 EEO Complaint Caseloads

file an appeal of the decision with EEOC. Employees will retain the right to

appeal an agency’s final action to EEOC. In addition, the decision on an

appeal from an agency’s final action will be based on a de novo review,

except that the review of the factual findings in a decision by an

administrative judge will be based on a substantial evidence standard of

review.3

 

3

Substantial evidence is the degree of relevant evidence that a reasonable person might accept as

adequate to support a conclusion.
Appendix III

Selected Complaint Data on U.S. Postal

Service

Page 32 GAO/GGD-99-128 EEO Complaint Caseloads

1991 1992 1993 1994 1995 1996 1997 1998

 Complaints

Total 16,964 18,668 22,258 27,044 30,605 31,195 34,286 36,333

Postal workers 3,963 4,626 5,026 6,893 10,105 11,357 13,549 13,996

Percent 23.4% 24.8% 22.6% 25.5% 33.0% 36.4% 39.5% 38.5%

Hearing

requests

Total 3,147 3,977 3,991 5,177 6,367 8,275 10,016 11,967

Postal workers 1,440 1,837 1,094 1,827 2,567 3,327 4,594 5,474

Percent 45.8% 46.2% 27.4% 35.3% 40.3% 40.2% 45.9% 45.7%

Appeals

Total 1,466 2,029 2,900 4,363 6,498 8,376 9,980 10,966

Postal workers a 837 940 1,470 2,563 3,558 4,317 4,961

Percent a 41.3% 32.4% 33.7% 39.4% 42.5% 43.3% 45.2%

a

Not available.

Source: GAO analysis of EEOC and Postal Service data.

Stage of

process

1991 1992 1993 1994 1995 1996 1997 1998

Dismiss/accept a 27 146 182 540 582 320 212

Investigation 207 217 183 212 145 163 405 300

Investigation

Dispositionb

267 237 c c c c c c

Hearing 494 502 180 284 307 322 887 675

Agency

decision

a a 179 210 239 251 302 285

Overall 399 356 176 212 287 315 494 450

a

No cases reported.

b When the agency notified the complainant in writing of its proposed disposition of the complaint and

of the right to a final decision with or without an EEOC hearing.

c

Discontinued as a reporting category.

Source: GAO analysis of EEOC and Postal Service data.

Table III.1: Total and Postal Service Inventories of Compliants, Hearing Requests, and Appeals and Postal Service as a

Percentage of the Totals for Fiscal Years 1991-1998

Table III.2: Average Age (Days) of Complaints in the Postal Service's Inventory Since Complaint Filed, by Stage of the

Complaint Process for Fiscal Years 1991-1998
Appendix III

Selected Complaint Data on U.S. Postal Service

Page 33 GAO/GGD-99-128 EEO Complaint Caseloads

Stage of process 1991 1992 1993 1994 1995 1996 1997 1998

Dismissal/acceptance a 0 62.2 40.0 53.7 61.9 26.2 65.5

Investigation 50.4 48.2 71.8 55.8 40.4 58.6 48.6 36.5

a

No cases reported.

Source: GAO analysis of EEOC and Postal Service data.

Fiscal year 1991 1992 1993 1994 1995 1996 1997 1998

Percent of workforce 23.9 23.2 23.5 27.2 28.6 31.2 31.8 32.2

Source: GAO analysis of EEOC data.

1991 1992 1993 1994 1995 1996 1997 1998

Complaints

Total 17,696 19,106 22,237 24,592 27,472 26,410 28,947 28,147

Postal workers 7,772 8,469 8,858 10,221 13,322 13,252 14,326 14,397

Percent 43.9% 44.3% 39.8% 41.6% 48.5% 50.2% 49.5% 51.1%

Hearing requests

Total 5,773 6,907 8,882 10,712 10,515 10,677 11,198 12,218

Postal workers 2,605 3,337 2,933 3,934 4,451 4,583 5,275 5,795

Percent 45.1% 48.3% 33.0% 36.7% 42.3% 42.9% 47.1% 47.4%

Appeals

Total 5,266 5,997 6,361 7,141 8,152 8,001 8,453 8,480

Postal workers 2,250 2,649 2,227 2,450 3,436 3,534 3,734 3,958

Percent 42.7% 44.2% 35.0% 34.3% 42.1% 44.2% 44.2% 46.7%

Source: GAO analysis of EEOC and Postal Service data.

Table III.3: Percentage of Postal Workers' Complaints Pending Dismissal/Acceptance and Investigation More Than 180 Days

for Fiscal Years 1991-1998

Table III.4: Postal Workers as a Percentage of the Federal Workforce for Fiscal Years 1991-1998

Table III.5: Total and Postal Workers’ Complaints, Hearing Requests, and Appeals and Postal Workers as a Percentage of Total

Complaints, Hearing Requests, and Appeals for Fiscal Years 1991-1998
Appendix III

Selected Complaint Data on U.S. Postal Service

Page 34 GAO/GGD-99-128 EEO Complaint Caseloads

Closure category 1991 1992 1993 1994 1995 1996 1997 1998

Dismissed 134 150 154 135 116 208 197 141

Withdrawn 256 256 266 213 218 296 300 261

Settled 217 211 307 279 280 341 401 355

Decision without hearing a a 227 520 393 512 439 477

Decision with hearing a a 734 721 510 527 689 749

Overall 230 233 296 315 247 330 353 322

a

Separate data not reported for closures with and without hearings.

Source: GAO analysis of EEOC and Postal Service data.

Table III.6: Postal Service Complaint Processing Time in Days by Closure Category
Appendix IV

Selected Federal Sector EEO Complaint Data

for Fiscal Years 1991 to 1998

Page 35 GAO/GGD-99-128 EEO Complaint Caseloads

The following figures show the trends in (1) inventories of unresolved

equal employment opportunity (EEO) complaints at federal agencies and

the Equal Employment Opportunity Commission (EEOC); (2) the age of

cases in the inventories; (3) the number of complaints, hearing requests,

and appeals filed; and (4) processing times for complaints, hearings, and

appeals.

Source: GAO analysis of EEOC data.

Figure IV.1: Agencies’ Complaint

Inventories Continue to Grow
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 36 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.2: EEOC’s Hearings and

Appeals Inventories Continue to

Increase
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 37 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.3: Average Age of the Complaint Inventory at Agencies FYs 1991 - 1998
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 38 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.4: Frequently, Agencies Did

Not Dismiss/Accept and Investigate

Complaints Within 180 days
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 39 GAO/GGD-99-128 EEO Complaint Caseloads

a

Not reported.

Source: GAO analysis of EEOC data.

Figure IV.5: Average Age of EEOC’s

Hearings and Appeals Inventories Has

Increased
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 40 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.6: Proportion of EEOC’s

Hearings Inventory Older Than 180 Days

Has Risen
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 41 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.7: More Appeals Have Been in

Inventory For Longer Periods of Time at

EEOC
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 42 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.8: The Number of Complaints

Filed With Agencies Has Generally

Increased
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 43 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.9: Hearings Requested and

Appeals Filed Have Increased at EEOC
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 44 GAO/GGD-99-128 EEO Complaint Caseloads

a

Separate data not reported for closures with and without hearings.

Source: GAO analysis of EEOC data

Figure IV.10: Complaint Processing Time at Agencies FYs 1991-1998
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 45 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.11: Average Time For

Agencies’ Complaint Investigations
Appendix IV

Selected Federal Sector EEO Complaint Data for Fiscal Years 1991 to 1998

Page 46 GAO/GGD-99-128 EEO Complaint Caseloads

Source: GAO analysis of EEOC data.

Figure IV.12: EEOC Processing Times

For Hearings and Appeals Continue to

Increase
Appendix V

Comments From the U.S. Equal Employment

Opportunity Commission

Page 47 GAO/GGD-99-128 EEO Complaint Caseloads
Appendix V

Comments From the U.S. Equal Employment Opportunity Commission

Page 48 GAO/GGD-99-128 EEO Complaint Caseloads
Appendix V

Comments From the U.S. Equal Employment Opportunity Commission

Page 49 GAO/GGD-99-128 EEO Complaint Caseloads
Appendix V

Comments From the U.S. Equal Employment Opportunity Commission

Page 50 GAO/GGD-99-128 EEO Complaint Caseloads
Page 51 GAO/GGD-99-128 EEO Complaint Caseloads
Page 52 GAO/GGD-99-128 EEO Complaint Caseloads
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