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

U.S. Commission on Civil Rights 

September 2004
U.S. Commission on Civil Rights 

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 1957. 

It is directed to: 

 Investigate complaints alleging that citizens are being deprived of their right to vote by reason of 

their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. 

 Study and collect information relating to discrimination or a denial of equal protection of the laws 

under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in 

the administration of justice. 

 Appraise federal laws and policies with respect to discrimination or denial of equal protection of the 

laws because of race, color, religion, sex, age, disability, or national origin, or in the administration 

of justice. 

 Serve as a national clearinghouse for information in respect to discrimination or denial of equal 

protection of the laws because of race, color, religion, sex, age, disability, or national origin. 

 Submit reports, findings, and recommendations to the President and Congress. 

 Issue public service announcements to discourage discrimination or denial of equal protection of the 

laws. 

Members of the Commission

Mary Frances Berry, Chairperson

Cruz Reynoso, Vice Chairperson

Jennifer C. Braceras 

Christopher Edley, Jr. 

Peter N. Kirsanow 

Elsie M. Meeks 

Russell G. Redenbaugh 

Abigail Thernstrom 

Les Jin, Staff Director

U.S. Commission on Civil Rights 

624 Ninth Street, NW 

Washington, DC 20425 

(202) 376-8128 voice 

(202) 376-8116 TTY 

www.usccr.gov 

This report is available on disk in ASCII and WordPerfect 5.1 for persons with visual impairments. Please 

call (202) 376-8110. 
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 
ii 

[blank page] 
iii 

Letter of Transmittal 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

The United States Commission on Civil Rights transmits this report, 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, pursuant to Public Law 103-419. This final volume of the 

series evaluates the extent to which these agencies have responded to Commission recommendations 

made during the past decade and if civil rights enforcement has improved or changed as a result. 

Volume I of this series named the critical elements in civil rights enforcement, such as accountability, on which previous Commission recommendations were based. As in volumes II and III, the 

Commission finds mixed implementation success. For example, the Department of Housing and Urban Development abided by most Commission advice, but the Equal Employment Opportunity 

Commission continued previously found approaches or chose other alternatives. 

An array of problems continues to hinder relief to victims of discrimination. Select illustrations from 

earlier volumes include inadequate civil rights resources for most Department of Transportation operating administrations and the Department of the Interior’s cursory pre-award reviews. This report 

finds, for example, that the Health and Human Services’ Office for Civil Rights has yet to revise and 

update its case resolution manual. 

Throughout the life of this four-year study, the Commission has identified model programs. Earlier 

volumes established, for example, that the Department of Labor’s job-training program’s data collection and analysis system was a model recipient compliance evaluation system and the Environmental 

Protection Agency created a Title VI task force to implement previous Commission recommendations. In this report, the Commission commends the Department of Education’s Office for Civil 

Rights models for technical assistance and outreach on important issues such as special education. 

Overall, agencies generally focus on process and not mission-oriented factors to measure progress. 

Federal civil rights enforcement, to evaluate effectiveness, must also formally assess agency progress 

toward discrimination reduction, the government’s overarching goal. 

 For the Commissioners, 

Mary Frances Berry 

Chairperson 
iv

Acknowledgements 

The Office of Civil Rights Evaluation, under the direction of Terri A. Dickerson, director, prepared 

this report. Sock-Foon C. MacDougall, social scientist, served as team leader, and along with Margaret Butler, civil rights analyst, and Wanda Johnson,* civil rights analyst, researched and wrote the 

report. Monique Dennis-Elmore,* civil rights analyst, conducted research, summarized prior Commission findings and recommendations pertaining to an agency, and drafted one of the interrogatories. Teresa Brooks, secretary, also contributed to the completion of the report. The following interns 

contributed to the report as well: Sarah Whitfield, St. John’s College, and Anny Vu, University of 

California, Los Angeles. 

Emma Gonzales-Joy, solicitor, reviewed the report for legal sufficiency. Ivy L. Davis, chief of regional programs, and Myrna Hernandez, human resource specialist, performed the editorial reviews. 

Dawn Sweet,* editor, prepared the report for publication. 

* No longer with the Commission.
v 

Contents 

Executive Summary..................................................................................................................... ix

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

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

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

Equal Employment Opportunity Commission...................................................................................2 

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

Department of Housing and Urban Development .............................................................................3 

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

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

Conclusion .........................................................................................................................................5

Chapter 2: Department of Education ......................................................................................... 7

Previous Commission Reviews of DOEd..........................................................................................8 

Mission and Responsibilities—OCR.................................................................................................8 

Priority of Civil Rights ......................................................................................................................9 

Resources—Funding and Staffing...................................................................................................10 

Planning ...........................................................................................................................................12 

Policy Guidance...............................................................................................................................13 

Technical Assistance........................................................................................................................21 

Education and Outreach...................................................................................................................24 

Compliance Reviews.......................................................................................................................25 

Deficiencies, Remedies, and Sanctions ...........................................................................................28 

Staff Training...................................................................................................................................29 

Oversight and Quality Assurance ....................................................................................................31 

Coordination ....................................................................................................................................33 

Output Evaluation............................................................................................................................33 

Conclusion .......................................................................................................................................35

Chapter 3: Equal Employment Opportunity Commission..................................................... 36

Previous Commission Reviews of EEOC........................................................................................36 

Mission and Responsibilities...........................................................................................................37 

Priority of Civil Rights ....................................................................................................................38 

Resources—Funding and Staffing...................................................................................................40 

Planning ...........................................................................................................................................43 

Policy Guidance...............................................................................................................................46 

Technical Assistance........................................................................................................................49 

Education and Outreach...................................................................................................................51 

Enforcement Activities....................................................................................................................55 

Complaint Processing ......................................................................................................................57 

Investigations...............................................................................................................................58 

Mediation.....................................................................................................................................60 

Special Charges ...........................................................................................................................62 

Charge Resolutions......................................................................................................................64 

Charge Processing Time..............................................................................................................64 
vi 

Litigation..........................................................................................................................................65 

Staff Training...................................................................................................................................66 

Oversight and Quality Assurance ....................................................................................................66 

Coordination ....................................................................................................................................67 

Conclusion .......................................................................................................................................68

Chapter 4: Department of Health and Human Services......................................................... 70

Previous Commission Reviews of HHS ..........................................................................................70 

Mission and Responsibilities—OCR...............................................................................................71 

Priority of Civil Rights ....................................................................................................................72 

Resources—Funding and Staffing...................................................................................................77 

Planning ...........................................................................................................................................79 

Policy Guidance...............................................................................................................................80 

Title VI Regulations ....................................................................................................................81 

Case Resolution Manual..............................................................................................................81 

LEP Guidance..............................................................................................................................82 

Technical Assistance........................................................................................................................83 

Education and Outreach...................................................................................................................84 

Complaint Processing ......................................................................................................................85 

Compliance Reviews.......................................................................................................................86 

Pre-Award Reviews.....................................................................................................................86 

Post-Award Reviews ...................................................................................................................87 

Limited-Scope Reviews and Full-Scope Reviews.......................................................................88 

Staff Training...................................................................................................................................89 

Coordination ....................................................................................................................................90 

Oversight and Quality Assurance ....................................................................................................91 

Data Collection and Analysis ..........................................................................................................91 

Community Involvement .................................................................................................................93 

Delegation........................................................................................................................................93 

Conclusion .......................................................................................................................................94

Chapter 5: Department of Housing and Urban Development................................................ 96

Previous Commission Reviews of HUD .........................................................................................97 

Mission and Responsibilities—FHEO.............................................................................................98 

Priority of Civil Rights ....................................................................................................................99 

Title VI ........................................................................................................................................99 

Title VIII....................................................................................................................................102 

Resources—Funding and Staffing.................................................................................................103 

Planning .........................................................................................................................................107 

Policy Guidance.............................................................................................................................109 

Regulations................................................................................................................................109 

Guidelines..................................................................................................................................109 

Policies.......................................................................................................................................110 

Enforcement Procedures................................................................................................................112 

Technical Assistance......................................................................................................................114 

Education and Outreach.................................................................................................................115 

Complaint Processing ....................................................................................................................117 

Compliance Reviews.....................................................................................................................122 
vii 

Staff Training.................................................................................................................................125 

FHA ...........................................................................................................................................125 

Title VI ......................................................................................................................................126 

Oversight and Quality Assurance ..................................................................................................127 

Certification of State and Local Fair Housing Agencies...............................................................128 

Creating New Private Fair Housing Organizations .......................................................................131 

Conclusion .....................................................................................................................................132

Chapter 6: Findings and Recommendations.......................................................................... 134

Statement 

Commissioner Jennifer C. Braceras................................................................................................... 151 

Figures

2.1 DOEd/OCR Organizational Structure, 2004 ............................................................................... 10 

2.2 DOEd/OCR Budget, 1996–2004 ................................................................................................. 11 

2.3 DOEd/OCR Staffing, 1996–2003................................................................................................ 12 

3.1 EEOC Organizational Structure, 2004 ........................................................................................ 39 

3.2 EEOC Budget, 1998–2002 .......................................................................................................... 41 

3.3 A Comparison of EEOC “A” and “B” Charges with On-Site Visits, 1998–2003....................... 59 

4.1 HHS/OCR Organizational Structure, 1998.................................................................................. 74

4.2 HHS/OCR Organizational Structure, 2003.................................................................................. 75

5.1 HUD/FHEO Organizational Structure, 1994............................................................................. 100 

5.2 HUD/FHEO Organizational Structure, 2004............................................................................. 101 

5.3 HUD/FHEO Budget 1998–2003 ............................................................................................... 105

5.4 HUD/FHEO Staffing, 1998–2003 ............................................................................................. 106 
viii

Tables 

2.1 Acronyms in Chapter 2.................................................................................................................. 7 

2.2 DOEd/OCR Compliance Reviews, 1998–2003........................................................................... 27 

2.3 DOEd/OCR Training Budget, 1997–2003 .................................................................................. 30 

2.4 DOEd/OCR Performance Indicators, 2000–2004 ....................................................................... 34 

3.1 Acronyms in Chapter 3................................................................................................................ 36 

3.2 Requested and Actual Full-Time-Equivalent Staff at EEOC, 1998–2002 .................................. 43 

3.3 EEOC Mediations Conducted and Resolved, 1999–2003........................................................... 61 

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

Cases in Litigation, 1997–2003 ................................................................................................... 63 

3.5 EEOC Monetary Awards Collected from Administrative Process and Litigation, 1998–2002........... 65 

4.1 Acronyms in Chapter 4................................................................................................................ 70 

4.2 HHS/OCR Funding and Staffing by Component and Activity, 1998–2003 ............................... 78 

4.3 HHS/OCR Pre-Award Reviews, 1998–2002............................................................................... 87 

4.4 HHS/OCR Post-Award Reviews, 1998–2002 ............................................................................. 88 

4.5 HHS/OCR Limited-Scope Reviews and Full-Scope Reviews, 1998–2002 ................................ 89 

5.1 Acronyms in Chapter 5................................................................................................................ 97 

5.2 HUD and FHAP Aged Cases (over 100 days old), 2003 .......................................................... 119 

5.3 HUD and FHAP (all FHAP agencies) Title VIII Complaints, 1998–2002 ............................... 121 

5.4 HUD Title VI Pre-Award Reviews, 1998–2001........................................................................ 123 

5.5 HUD Title VI Post-Award Reviews, 1998–2001...................................................................... 125 
ix 

Executive Summary 

The Civil Rights Act of 1964, born of long, painful years of struggle for equality, is one of the most 

comprehensive pieces of civil rights legislation that Congress enacted since post-War Reconstruction.1

 Title VI of the Civil Rights Act prohibits discrimination in federal programs based on race, 

color, or national origin while Title VII bans unlawful employment discrimination practices. Title 

VIII, better known as the Fair Housing Act (FHA) (amended in 1988), banned discrimination in most 

housing transactions. These statutes mandate equal access to employment, housing, transportation, 

and education and established a foundation on which further progress could be made. 

The statutes’ mandates, however, can only be realized if federal civil rights agencies conduct vigorous enforcement. The Commission emphasizes each agency head’s leadership role to support Offices 

of Civil Rights. The Commission’s reports over the last decade identified a set of civil rights elements that if carefully followed promotes enforcement. These are priority of civil rights, resources 

(funding and staffing), effective planning, policy guidance prepared and issued, technical assistance, 

education and outreach, effective compliant processing process, quality compliance review, staff 

training, and initiatives that maximize effectiveness.2

 These elements frame the Commission’s fourvolume study on civil rights enforcement. 

During this four-volume study, the Commission revisited 11 federal agencies to determine whether 

or not they have responded to recommendations offered in previous reports and if civil rights enforcement improved as a result. Throughout the volumes, the Commission has identified good and 

inadequate civil rights practices that affect federal agencies’ ability to carry out their enforcement 

responsibilities. This final volume evaluates the extent to which the Departments of Education, 

Health and Human Services, and Housing and Urban Development, and the Equal Employment Opportunity Commission have implemented the Commission’s recommendations. These agencies oversee federally conducted and federally assisted programs that have consequences for the nation’s 

social welfare. Affected people rely on forceful enforcement of the civil rights statutes for which 

these agencies have responsibility to afford equal access to education and quality health care, protection from employment discrimination, and safe and decent housing. It is the federal agencies’ responsibility to ensure that they and their grant recipients administer programs and services without 

discrimination and provide equal access to all beneficiaries and participants. 

Department of Education 

The U.S. Department of Education’s (DOEd) elementary and secondary programs annually serve 

nearly 15,000 school districts and more than 53 million students nationwide. DOEd’s postsecondary 

program coverage also extends to more than 4,000 colleges and universities. The agency’s Office for 

 

1

 Wade Henderson, “Remarks on the 40th Anniversary of the Civil Rights Act,” speech, June 24, 2004. 2 See U.S. Commission on Civil Rights, Ten-Year Check-Up: Have Federal Agencies Responded to Civil Rights Recommendations? Volume I: A Blueprint for Civil Rights Enforcement, September 2002, which summarily discusses these elements. 
x 

Civil Rights (OCR) is one of the largest civil rights enforcement units in the federal government. Between 1992 and 2000 the Commission reviewed OCR numerous times and issued 224 recommendations. In this report, the Commission continues to find strengths and weaknesses in OCR’s 

enforcement practices. On paper, OCR’s organizational structure remains exemplary; but two of its 

top positions are vacant. It also continues to effectively conduct Title VI outreach and education as 

well as provide technical assistance. However, the office still does not track civil rights activity expenditures; there is an absence of manuals explaining procedures for Title VI compliance and review 

processes; and on-site reviews are still based on priority issues because of limited resources. Furthermore, OCR does not apply social or behavioral science methods to evaluating its progress, relying instead on measures that assess administrative processes and not mission accomplishment. Some 

OCR practices offer models from which other agencies might benefit. Since 2000 OCR has consistently exceeded its performance targets for complaint resolution rates and durations; for example, 

within 180 days of receipt; over the past seven years OCR has allocated an average of $446,000 for 

training; and OCR has an active and effective public outreach and education program. 

Equal Employment Opportunity Commission 

The U.S. Equal Employment Opportunity Commission’s (EEOC) mission promotes equality of opportunity in the workplace and enforces federal laws prohibiting employment discrimination. The 

EEOC enforces six key civil rights statutes to accomplish this. Between 1992 and 2000, the Commission assessed EEOC’s performance in implementing and enforcing Title VII and offered 199 recommendations for improvement. EEOC implemented few of the Commission’s recommendations, 

preferring to continue with existing approaches to address problems previously identified, or use alternative approaches. In regard to the staff training, EEOC offered many nationwide training programs for attorneys and field staff, such as negotiation and resolution skills and trial skills, but most 

took place between fiscal years 1999 and 2002. Further, despite the Commission’s previous recommendation, EEOC still has not issued an updated compliance manual since 1998. Neither has it developed timetables to review existing guidance to determine relevance and usefulness. This study 

also discovers that EEOC adopted a Five-Point Plan, which is the current framework for accomplishing its mission. The plan’s objectives focus on prevention, proficient resolution, promotion, and expansion of mediation, strategic enforcement and litigation, and promotion of EEOC as a model 

workplace. The agency’s newly implemented strategic plan for fiscal years 2004–2009 incorporates 

and executes the Five-Point Plan and contains performance indicators. EEOC should ensure that performance indicators also assess the eradication of discrimination. The Commission commends EEOC 

for its extensive outreach, education, and technical assistance activities that reach underserved groups 

through forums, public events, and regular and ethnic media. Unfortunately, EEOC programs suffer 

from inadequate funding and staffing; it has not received a significant funding increase since 1998, 

and key positions remain vacant. 

Department of Health and Human Services 

The U.S. Department of Health and Human Services is the principal agency for ensuring health services for all Americans and protecting individuals and groups from discriminatory practices. The 

agency provides approximately 60,000 grants per year, and supports more than 300 programs, aspects of which apply to everyone. The Office for Civil Rights (OCR) enforces 18 federal statutes to 

prevent and eliminate unlawful discrimination in access to health care. Between 1992 and 2000, the 

Commission offered more than 200 recommendations to OCR pertaining to civil rights enforcement 

in health care. This study finds that OCR implemented some of the Commission’s recommendations. 
xi 

For example, OCR streamlined its organizational structure, establishing multifunctional units and 

consolidating tasks; developed budget plans and resource accountability standards; established an 

electronic reporting system to track civil rights expenditures and better identify resource needs; and 

improved legal training, technical assistance, and outreach to operating divisions, grant recipients, 

communities, and advocacy groups. However, OCR did not follow some Commission advice. For 

example, OCR has not improved compliance reviews since the 1996 and 1999 reviews. OCR only 

conducts pre-award reviews on new Medicare applicants and Medicare recipients with a change of 

ownership or name. Further, OCR conducted few post-award reviews, including desk-audit and onsite visits, relative to its number of recipients. In addition, OCR does not require applicants or recipients to collect or submit demographic data on beneficiaries. Furthermore, if OCR made better use of 

operating divisions, it could improve complaint processing and enforcement. 

Department of Housing and Urban Development 

The U.S. Department Housing and Urban Development’s (HUD) mission is to increase homeownership, support community development, and increase access to affordable housing free from discrimination. The Office of Fair Housing and Equal Opportunity (FHEO) enforces eight federal civil rights 

laws. Between 1992 and 1996, the Commission issued three reports examining HUD’s FHA and Title VI enforcement record and offered 66 recommendations. HUD implemented many of these recommendations, thus addressing Commission concerns. The FHEO assistant secretary now has the 

authority to issue cause or no cause determinations with general counsel concurrence. However, 

about 30 percent of HUD’s open case inventory and 44.7 percent of FHAP’s were aged more than 

100 days at the beginning of FY 2003. Aged cases for both HUD and FHAP averaged 400 and 317 

days, respectively. Furthermore, the secretary-initiated complaint is a seriously underutilized enforcement strategy. Secretary-initiated complaints combat broad-based discrimination and regular 

use enhances enforcement. Moreover, HUD does not consistently evaluate education and outreach 

initiatives to determine success and collect feedback for improvement. HUD also has developed 

measurable performance indicators, many focusing on assessing process results. It needs to adopt 

evaluation methods that measure mission attainment not just administrative process. HUD’s Civil 

Rights Limited Monitoring Review Protocol (CRLMR) and Risk Analysis Data Management System 

(RADMS) are worthy of emulation. The CRLMR promotes civil rights enforcement as an agencywide mission; FHEO enforces civil rights compliance while the evaluation units in program offices 

conduct civil rights monitoring. RADMS predicts recipient civil rights risk (discriminatory) potential 

and helps FHEO identify recipients for on-site reviews. Unfortunately, HUD funding and staffing 

continue to be problematic, and overall, while much is improved complaint processing is not. 

More generally, after more than three years of research and study, the Commission finds common 

threads running through the four-volume series. Implementation of Commission recommendations 

varied among the agencies for a variety of reasons, including changed priorities; problems that continue to hinder civil rights enforcement, for example, inadequate resources and staffing, outdated and 

unclear guidance at some of the agencies; performance indicators that measure quantity but do not 

assess agency success in eradicating discrimination; and infrequent evaluation of initiatives directed 

to targeted groups. The Commission urges careful consideration of findings and recommendations 

presented in the four-volume series; correction of identified problems; use of more complex tools, 

such as testing and public surveys, to establish bases against which progress toward discrimination 

elimination can be measured; and formal evaluation of agency initiatives. The Commission also 

found several model civil rights programs that other federal agencies may wish to examine. 
xii 

The Commission concludes that its function of monitoring federal civil rights law enforcement, researching and preparing reports, and making findings and recommendations is still very much 

needed. The struggle for equality for all regardless of race, national origin, gender, age, religion, disability, or familial status is, as Representative John Lewis put it, “the struggle of a lifetime [and] . . . 

our work is far from done.”3

 

 

3

 Congressman John Lewis, “‘Equal Justice’ Only an Illusion,” <http://www.house.gov/johnlewis/pr040126.html> (last 

accessed July 15, 2004); “Congressman John Lewis Lead Sponsor on the Fairness Act: The Civil Rights Act of 2004,” 

<http://www.house.gov/johnlewis/pr040126.html> (last accessed July 15, 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, 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, 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 

 

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)). 
2 

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, two key positions in the Office for Civil Rights (OCR) have become vacant: assistant secretary for civil rights 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 DOEd Secretary must make 

filling the two 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 excel-

 

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)). 
 3

lence. 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. 

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 postaward 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. 

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 broad-based 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 certi-

 

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. 
4 

fied.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). 

 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). 

 

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. 
 5

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; 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

 

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 research methods as relevant to measuring discrimination. See the National Research Council of the National Academies, Measuring Racial Discrimination, 2004. 
6 

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 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. 

 

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. 
 7

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). 
8 

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 preaward 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 

 The Age Discrimination Act of 1975.9

 Title II of the Americans with Disabilities Act of 1990.10 

 

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)). 9

 Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621–634 (2004)). 
 9

 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, two of the top three positions within OCR are vacant. The 

assistant secretary for civil rights resigned October 31, 2003. The deputy assistant secretary for policy position became vacant in November 2003; no one is acting in the 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. 

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; 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: 

 Two of the top three positions—the assistant secretary for civil rights and the deputy assistant 

secretary for policy—are vacant. 

 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. 

15 U.S. Department of Education, “OCR Organizational Chart and Functional Statements,” Oct. 28, 1999, pp. 9–11. 
10 

FIGURE 2.1 

DOEd/OCR Organizational Structure, 2004 

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

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 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 

 

16 USCCR, Federal Title VI Enforcement, p. 211. 17 DOEd Interrogatory, p. 2. 
 11

FIGURE 2.2 

DOEd/OCR Budget, 1996–2004 

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

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 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 

 

18 Ibid., pp. 1–2. 

19 USCCR, Federal Title VI Enforcement, p. 210. 
12 

FIGURE 2.3 

DOEd/OCR Staffing, 1996–2003

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

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. 

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 pro-

 

20 DOEd Interrogatory, p. 2. 
 13

jected 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 

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 pro-

 

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. 
14 

grams 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 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 and investigative manual, which replaces the old 

case resolution manual. Aside from outlining complaint investigation procedures, it offers a small 

 

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

34 USCCR, Federal Title VI Enforcement, p. 213. 
 15

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. 

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.37 

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.38 

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.39 The Commission recommended that OCR finalize and disseminate the PAR review self-assessment 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.40 

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.41 

 

35 U.S. Department of Education, Office for Civil Rights, “Case Resolution and Investigative Manual,” June 2004, p. 19. 36 OCR only performs pre-award reviews mandated by law under the Magnet Schools Assistance Program. 

37 USCCR, Asian Americans in the 1990s, pp. 195–97. 38 DOEd Interrogatory, p. 13. 

39 USCCR, Equal Educational Opportunity, Volume I, pp. 251–52. 40 USCCR, Federal Enforcement of Title VI in Ability Grouping Practices, p. 125. 41 DOEd Interrogatory, p. 14. 
16 

In 1996, the Commission found that Section 504 regulations42 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 504.43

As a result, the Commission recommended that OCR issue new Title VI regulations44 modeled on the 

subdivision in the Title IX45 and Section 504 regulations.46 

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.47 

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 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.48

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.” 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 

2001.49

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.50

OCR’s Web site is now accessible to the public.51 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. 

 

42 34 C.F.R. pt. 104 (2004). 

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

45 34 C.F.R. pt. 106 (2004). 

46 USCCR, Equal Educational Opportunity, Volume I, p. 255. 47 DOEd Interrogatory, pp. 14–15. 

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

50 USCCR, Equal Educational Opportunity, Volume I, p. 259. 51 See <http://www.ed.gov/about/offices/list/ocr/publications.html> (last accessed Apr. 19, 2004). 
 17

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.52

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 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 stateand 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.53 

The Commission found that despite the landmark Brown v. Board of Education decision,54 most 

schools in the United States still used ability grouping to organize students within classrooms.55 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.56

 

52 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 nonEnglish-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). 

53 DOEd Interrogatory, p. 18. 

54 347 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. 

55 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. 

56 USCCR, Federal Enforcement of Title VI in Ability Grouping Practices, pp. 119–20. 
18 

The Commission identified five key principles and recommended that OCR implement them in providing guidance on education planning.57 

OCR still considers the overrepresentation of minorities in lower track courses a problem,58 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 case resolution where appropriate planning measures are necessary to achieve compliance with federal requirements.59

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.60

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.61 

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.62 

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.”63 OCR’s pamphlet, “Student Assignment in 

Elementary and Secondary Schools and Title VI,” also provides a definition.64

 

57 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. 

58 DOEd Interrogatory, p. 4. 

59 Ibid., p. 19. 

60 USCCR, Federal Enforcement of Title VI in Ability Grouping Practices, p. 121. 61 DOEd Interrogatory, p. 19. 

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

(last accessed May 12, 2004). 

64 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). 
 19

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

references to “handicapped persons” throughout the corresponding regulations.65 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.66

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 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.67 

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.68 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.69 

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.70 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.71 In 

addition, OCR states that it has consistently required FAPE to gifted and limited English proficient 

students with disabilities.72 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.73

 

65 34 C.F.R. § 104.3(j) (2004). 

66 USCCR, Federal Enforcement of Section 504, p. 374. 

67 DOEd Interrogatory, p. 20. 

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

70 34 C.F.R. § 104.4 (2004); DOEd Interrogatory, p. 22. 71 DOEd Interrogatory, p. 22. 

72 U.S. Department of Education, Office for Civil Rights, Comments on USCCR Draft 10-Year Review, p. 3. 73 USCCR, Federal Enforcement of Section 504, p. 406. 
20 

OCR has issued several pamphlets on postsecondary education of students with disabilities.74 “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 education as well as the responsibilities that postsecondary schools have for students.75 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.76

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.77 

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.78 

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.79

Among this section’s key points are: 

 OCR released its new case resolution and investigative manual in June 2004. 

 

74 DOEd Interrogatory, p. 23. 

75 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). 

76 USCCR, Federal Enforcement of Title IX, p. 132. 77 DOEd Interrogatory, pp. 23–24. 

78 USCCR, Federal Enforcement of Title IX, p. 133. 79 DOEd Interrogatory, p. 24. 
 21

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

 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,” 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.80 One of OCR’s primary 

technical assistance activities was the development and dissemination of “promising programs and 

practices” documents in high-priority areas.81 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.82 

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.83

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.84 

 

80 USCCR, Federal Title VI Enforcement, p. 215; USCCR, Equal Educational Opportunity, Volume I, p. 261. 81 “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. 82 USCCR, Federal Enforcement of Title IX, p. 135. 83 DOEd Interrogatory, p. 5. 

84 Ibid. 
22 

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.85 

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.”86 

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 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. 

 

85 USCCR, Federal Enforcement of Title VI and Lau v. Nichols, pp. 197–98, 230–31. 86 DOEd Interrogatory, p. 6. 
 23

 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.87 

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.88 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) 

limited- English-proficient parental involvement; (4) the transition of students with disabilities from 

secondary to postsecondary education; and (5) physical accessibility at postsecondary institutions.89

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.90

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 internal use.91

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. 

 

87 Ibid., p. 7. 

88 Ibid. 

89 Stephen Cramolini, special assistant, Office of the Deputy Assistant Secretary for Enforcement, U.S. Department of 

Education, e-mail, Mar. 8, 2004. 

90 USCCR, Federal Enforcement of Title IX, p. 135. 91 DOEd Interrogatory, p. 8. 
24 

 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.92 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);93 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.94

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.95 

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 non-U.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.96 

 

92 USCCR, Federal Title VI Enforcement, p. 215. 93 Pub L. No. 101-476, 104 Stat. 1103 (codified as amended at 20 U.S.C. §§ 1400–1485 (2004)). 

94 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. 95 DOEd Interrogatory, p. 9. 

96 Ibid., pp. 9–10. 
 25

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.97 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.98 

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.99 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 re-evaluation 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.100 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. 

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.101

 

97 See <http://www.ed.gov/about/offices/list/ocr/docs/placpub.html> (last accessed Apr. 19, 2004). 98 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). 

99 34 C.F.R. § 104.35(d) (2004); DOEd Interrogatory, p. 11. 100 DOEd Interrogatory, p. 11. 

101 USCCR, Federal Title VI Enforcement, p. 213. 
26 

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.102

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 postaward 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.103

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 post-award desk-audit 

reviews.104 

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.105 The Commission also recommended that OCR expand its selection process for compliance reviews to include more input from parents and students.106

OCR initiated fewer compliance reviews between FY 1998 and 2002 due to an increased monitoring 

workload.107 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 1993.108 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.109 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). 

 

102 DOEd Interrogatory, p. 25. 

103 USCCR, Federal Title VI Enforcement, p. 214. 104 DOEd Interrogatory, p. 26. 

105 USCCR, Federal Title VI Enforcement, p. 214. 106 USCCR, Equal Educational Opportunity, Volume I, p. 260. 107 DOEd Interrogatory, p. 26. 

108 DOEd/OCR, “2001 and 2002 Annual Report”; DOEd Interrogatory, p. 27. 

109 DOEd Interrogatory, p. 27. 
 27

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.110 

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.111 

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.112 The Commission recommended that OCR step up its enforcement of Title 

VI’s Lau requirements for instruction for students with limited English 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.113

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.114 OCR has been monitoring the im-

 

110 Ibid., p. 33. 

111 Ibid., p. 28. 

112 USCCR, Asian Americans in the 1990s, pp. 194–95. 113 DOEd Interrogatory, p. 27. 

114 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 re-
28 

plementation 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.115 According to OCR, one of its 

high-priority national issues for compliance reviews is the placement of ELL students in special education.116

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.117 

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 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.118 

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 

 sults; 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. 

115 DOEd/OCR, “2001 and 2002 Annual Report,” p. 10. 

116 DOEd Interrogatory, p. 27. 

117 USCCR, Federal Enforcement of Title IX, pp. 134, 146. 118 DOEd Interrogatory, p. 29. 
 29

recommended that other federal agencies emulate DOEd and make effective use of all the enforcement options available to them.119

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.120

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 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.121 

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.122 

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.123 

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-

 

119 USCCR, Federal Title VI Enforcement, pp. 214, 216. 120 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. 

121 USCCR, Federal Title VI Enforcement, p. 216. 122 DOEd Interrogatory, p. 33. 

123 Ibid. 
30 

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.124 

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.125 

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). 

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.126 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 poli-

 

124 Ibid. 

125 Ibid., pp. 33–35. 

126 Ibid., p. 35. 
 31

cies 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.127

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.128 

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.129 

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.130 

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.131 

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 

 

127 USCCR, Equal Educational Opportunity, Volume I, p. 263. 128 DOEd Interrogatory, pp. 35–36. 

129 USCCR, Federal Title VI Enforcement, pp. 215–16. 130 DOEd Interrogatory, p. 36. 

131 USCCR, Federal Title VI Enforcement, p. 216. 
32 

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.132 

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 recommended that OCR use 

these data in deciding whether to initiate Title VI compliance reviews of these institutions.133 

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.134 NCES makes its Integrated Postsecondary Education Data System 

available to the public through its Web site.135 

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.136 

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.137 

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. 

 

132 DOEd Interrogatory, p. 30. 

133 USCCR, Asian Americans in the 1990s, pp. 195, 197. 134 DOEd Interrogatory, p. 31. 

135 See <http://www.ed.gov/nces/ipeds> (last accessed Apr. 21, 2004). 136 USCCR, Equal Educational Opportunity, Volume I, p. 249. 137 DOEd Interrogatory, p. 31. 
 33

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.138

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.139

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.140 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 limited English proficient persons 

have meaningful access to important federal and federally assisted programs. OCR serves on the 

steering committee of the working group.141 

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.142 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.143 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. 

 

138 USCCR, Equal Educational Opportunity, Volume I, p. 248. 139 DOEd Interrogatory, p. 37. 

140 USCCR, Equal Educational Opportunity, Volume I, p. 250. 141 DOEd Interrogatory, p. 37. 

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

and natural experiments, and survey and administrative records reports. 

143 DOEd Interrogatory, p. 38. 
34 

Under these two objectives, OCR has developed performance evaluation factors in response to the 

requirements of the Government Performance and Results Act (GPRA).144 

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 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.145 OMB and Congress measure OCR’s effectiveness by reviewing its ability 

to meet these indicators.146 

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. 

 

144 Pub. L. 103-62, 107 Stat. 285 (codified as amended in scattered sections of 31 U.S.C. and 39 U.S.C. (2004)). 145 DOEd Interrogatory, p. 38. 

146 Ibid., p. 41. 
 35

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. 

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 English proficient 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 postaward 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.
36 

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 (ADA) and offered 68 

 

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. 
 37

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 except that issued in 1993 as this chapter’s 

focus is on the private sector. 

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. 

 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. 

 

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)). 
38 

 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 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 

 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. 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. 
 39

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. 

FIGURE 3.1 

EEOC Organizational Structure, 2004

Office of Research,

Information and 

Planning

Office of Chief

Financial Officer and 

Administrative

Services

Office of Information 

Resource

Management

Commissioner Commissioner General CounselCommissioner 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

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). 

 

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 in the Planning section of this chapter. 25 EEOC Interrogatory, p. 5. 
40 

Among this section’s key points are: 

 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 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). 

 

26 USCCR, Helping Employers Comply with the ADA, p. 247. 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). 
 41

FIGURE 3.2 

EEOC Budget, 1998–2002

$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

 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. 

 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 

 

29 EEOC Interrogatory, p. 6. 30 Ibid., p. 7; Brenner May 17 e-mail, p. 5. 
42 

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 

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 

 

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. 35 Ibid. One long-time commissioner’s term is due to expire in July. See ibid. 36 EEOC, FY 2004–2009 Strategic Plan. 
 43

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. 

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, in-

 

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 Plan. 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. 
44 

vestigatory, 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 

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 

 

42 EEOC, “An Overview.” 

43 USCCR, Overcoming the Past, p. 272. 44 EEOC Interrogatory, p. 31. 

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. 
 45

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. 

 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 in-

 

48 Ibid., p. 12. 

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). 
46 

dicates 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

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 

 

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. 

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. 
 47

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 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 

 

60 USCCR, Overcoming the Past, p. 272. 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. 
48 

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: 

 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. 

 

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. 

72 5 U.S.C. § 553 (2004). 
 49

 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 topical areas 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. 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.74 The RF division coordinates the marketing of TAPS. District offices conduct supplemental marketing of their respective 

TAPS.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 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 

 

73 USCCR, Overcoming the Past, p. 292. 74 EEOC Interrogatory, pp. 19–20. 

75 Brett Brenner, attorney advisor, U.S. Equal Employment Opportunity Commission, telephone interview, Mar. 26, 2004; 

Brenner May 17 e-mail, p. 8. 

76 USCCR, Overcoming the Past, p. 291. 77 42 U.S.C. § 2000e-4(k) (2004); USCCR, Overcoming the Past, p. 226. 
50 

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 feebased 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 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, such 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 

 

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. 82 EEOC Interrogatory, p. 22. 
 51

 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 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 

 

83 USCCR, Overcoming the Past, pp. 293, 296. The “expanded presence” policy has been in place for at least 20 years. See

Brenner May 17 e-mail, p. 8. 

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 
52 

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 

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 bi-

 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. 

89 Ibid., p. 24. 
 53

lingual 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 of time. The Commission recommended that outreach staff explore 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 lack-

 

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. 

94 USCCR, Asian Americans in the 1990s, p. 294. 95 EEOC Interrogatory, pp. 25–26. 
54 

ing, 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 

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, 

 

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. 98 USCCR, Overcoming the Past, p. 279. 99 EEOC Interrogatory, p. 31. 
 55

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 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

 

100 USCCR, Overcoming the Past, pp. 102, 114. 101 Ibid., pp. 273–74. 

102 EEOC Interrogatory, pp. 18, 32. 
56 

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 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 post-traumatic 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. 

 

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. 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. 
 57

 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 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

 

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. 

112 Ibid., pp. 34–35. 

113 Brenner May 17 e-mail, p. 11. 
58 

Among this section’s key points 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 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 onsite 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 

 

114 USCCR, Overcoming the Past, p. 280. 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. 
 59

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 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

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. 

 

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. 
60 

 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 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 

 

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 <http://www.eeoc.gov/mediate/mcd-intro.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. 
 61

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 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 

 

123 EEOC Interrogatory, p. 8. 

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 FY 2001 and 2002. See Brenner May 17 e-mail, p. 13. 125 USCCR, Overcoming the Past, p. 278. 
62 

agency does not conduct a compliance review regarding implementation of the terms of mediation 

agreements except in the event of a breach.126 

Among this section’s key points 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

 

126 EEOC Interrogatory, p. 40. 

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. 
 63

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 re-emphasize 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. 
64 

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 Charge Data System showed 

that the average processing time for a charge was 325 days, but had declined since the implementa-

 

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. 
 65

tion of PCHP. The Commission recommended that EEOC re-establish 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 then 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. 
66 

Among this section’s key points 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 positions. Moreover, EEOC should include diversity issues in pertinent investigations and through commissioner charges.145

 

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. 

145 USCCR, Overcoming the Past, p. 267. 
 67

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 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 

 

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. 150 USCCR, Helping Employers Comply with the ADA, p. 246. 
68 

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 

Among this section’s key points 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 differ-

 

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. 
 69

ent 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 disabilitybased 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 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. 

 

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. 
70 

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 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 

 

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.” 
 71

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 HHS-funded 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, healthrelated 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 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 HillBurton 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. 
72 

 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 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 

 

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. 

21 USCCR, The Health Care Challenge, Vol. II, p. 18. 
 73

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.

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 

 

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. 

26 USCCR, The Health Care Challenge, Vol. II, pp. 19–20. 
74 

FIGURE 4.1 

HHS/OCR Organizational Structure, 1998 

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

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 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, OCR did not have its own 

legal staff in 1999. Instead, OGC provided guidance and interpretation of legal matters on enforcement to OCR. 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 Commis-
 75

sion’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

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

 

Source: HHS Interrogatory, “2003 Organizational Chart,” p. 3.

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 dis-

 

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. 30 Ibid., pp. 4–5. 
76 

abilities. 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 pre-award 

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, 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. 

 

31 Ibid., pp. 5–7. 

32 Ibid., pp. 3, 6–7. 

33 Ibid., p. 6. 
 77

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 

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. 

 

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. 40 HHS Interrogatory Document Request, Oct. 15, 2003, Items 2, 4. 

41 HHS Interrogatory, pp. 8–9. 
78 

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. 
 79

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 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 objec-

 

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. 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. 
80 

tives 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 

 

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 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 
 81

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 

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 

 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). 58 USCCR, Federal Title VI Enforcement, p. 242. 59 USCCR, The Health Challenge, Vol. II, pp. 156–57, 168–70. 
82 

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 and failed 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 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 J. 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 

 

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. 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. 
 83

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. 

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-bystep 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. 

 

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. 

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. 
84 

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 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 

 

73 HHS Interrogatory, pp. 22–25. 

74 USCCR, Federal Title VI Enforcement, p. 245. 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. 
 85

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. 

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 pre-award reviews as a proactive strategy to eliminate discrimination before a complaint is filed, which would increase the number of applicants undergoing preaward 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. 

 

79 HHS Interrogatory, pp. 27–30. 

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. 
86 

 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 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 preaward 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 

 

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. 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 preaward reviews do not involve an on-site visit to a facility. HHS Interrogatory, p. 36. In 1999, some operating divisions had 
 87

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 a total of 18,531 pre-award reviews between FY 1998 and 2002, and that the number reviewed 

each year was lower than that in FY 1998. OCR maintains that it cannot control the number of preaward reviews it conducts since it is based on the number of Medicare recipients that the Centers for 

Medicare and Medicaid refer each year.89 OCR believes that strategies to increase the number of preaward reviews are unnecessary since it is reaching the largest number of new applicants through its 

pre-award 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 desk-audit 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. 

 civil rights staff performing external civil rights enforcement. In 2003, six operating divisions had MOUs with OCR. HHS 

Interrogatory, p. 44. 

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. 
88 

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. Onsite 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 percent in FY 2003. The 

trend in percentage of reviews resulting in a finding of noncompliance is erratic, with figures notably 

high in FY 1998 and FY 2001 (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. Limited-scope 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 full-scope reviews.99

 

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. 
 89

Table 4.5 shows the number of limited-scope and full-scope reviews conducted 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 limitedor 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 this 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. 
90 

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 this 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 2002, to address different services for 

 

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. 
 91

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 Americans.114 Apart from 

fulfilling Hill-Burton Act requirements, OCR did not request racial and ethnic data from recipients until 

 

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. 

114 USCCR, Asian Americans in the 1990s, p. 202. 
92 

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 HillBurton 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 case elements. Similarly, it will 

collect health care and human services data during compliance reviews.121 

Among this 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. 

 

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. 

121 HHS Interrogatory, p. 56. 
 93

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 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 ef-

 

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 pre-award and post-award reviews, 

data collection and analysis, and reviewing and evaluating recipient self-assessments and assurances of nondiscrimination. 126 USCCR, The Health Care Challenge, Vol. II, p. 357. 127 USCCR, Federal Title VI Enforcement, pp. 238–40. 
94 

forts. 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. 

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. 

 

128 HHS Interrogatory, p. 44. 

129 Ibid., p. 7. 
 95

 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. 

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. 
96 

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.” 

12 See HUD, “Fair Housing Laws and Presidential Orders.” 
 97

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 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 hous-

 

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. 
98 

ing 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 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 

 

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.” 

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. 
 99

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 

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

 

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. 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. 
100 

FIGURE 5.1 

HUD/FHEO Organizational Structure, 1994 

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

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. 

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 

 

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). 
 101

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

FIGURE 5.2 

HUD/FHEO Organizational Structure, 2004

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

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. 

 

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). 
102 

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 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 

 

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. 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. 
 103

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 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 It now captures workload accomplishments and time usage of all enforcement activities.42

 

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. 

39 HUD Interrogatory, p. 2. 

40 USCCR, Federal Title VI Enforcement, p. 345. 41 Peoples letter, p. 5. 
104 

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.43

Congress funds FHIP and FHAP separately and, consequently, they have separate budgets.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 This 

notwithstanding, the current funding level has affected, for example, HUD’s ability to perform postaward 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 esti-

 42 HUD Interrogatory, p. 7. 

43 Ibid., p. 8. 

44 In FY 2003, Congress appropriately $20.5 million for FHIP and $25.6 million to FHAP. See 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. 
 105

mated illegal acts of housing discrimination that 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 

45.5 47.6 47.5

51.4

58.5

65.7

15

20.3

13

22 22 24 24

20.3

25.6 25.6

20

$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

 

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 upward trend (see figure 5.4). 

Furthermore, the FY 2003 FTE level of 758 exceeds that of the FY 1992 level by only 15, at which 

 

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 is presented later. 

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. 
106 

time the Commission recommended an increase in resources for HUD. 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 congressionally mandated 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

591 592 587 608

653

758

477 492

580

178

455 480 461

161 136 115 126 128

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

 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 their understanding of investigation poli-

 

55 HUD Interrogatory, p. 43. 

54 National Council on Disability, Reconstructing Fair Housing, Nov. 6, 2001, p. 11. 

56 Stephen Barr, “Window for HUD Buyouts in Four Offices Opens Today,” Washington Post, May 19, 2004, p. B2. 57 HUD Interrogatory, p. 64. 
 107

cies 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 grew 

in FY 2002 and 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 to bring the number of employees in line with a congressionally 

mandated ceiling affect FHEO. 

 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 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 “intermedi-

 

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. 

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. 
108 

ate 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) implements 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 at the end of the fiscal year and that 

FHEO headquarters will monitor progress.72 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 

 

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. 

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). 
 109

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’ 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 selfassessment of their compliance status, including remedying any deficiencies discovered; (3) include 

definitive standards on implementation, compliance, and enforcement for states and local agencies; 

 

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. 77 198 F.3d 107 (3d Cir. 1999). See HUD Interrogatory, p. 11. 78 Peoples letter, p. 5. 
110 

(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

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 

 

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. 

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. 
 111

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 DOJ-developed 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 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 procedure is adopted 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 

 

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. 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.fair 

housingfirst.org/trainingprogram.asp> (last accessed Dec. 12, 2003); “Educational Materials,” <http://www.fairhousing 

first.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. 
112 

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 use of 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 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 

 

94 USCCR, Fair Housing Amendments Act Report, pp. 227–28. 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. 
 113

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 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, 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. FHEO headquarters uses the handbook 

guidance in all in-house 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 published additional chapters and revisions 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. 

 

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. 

101 USCCR, Fair Housing Amendments Act Report, p. 222. 102 HUD Interrogatory, p. 19. 

103 See ibid., pp. 18–24, for examples of handbooks, manuals, memoranda of understanding, regulations, notices, and general Title VIII case processing guidance materials. 
114 

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 

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 throughout the country. Training includes on-site Title VI compliance reviews to encourage acquisition of practical experience.105 

On certifying state and local fair housing agencies’ laws 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. Such a situation 

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 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 

 

104 USCCR, Federal Title VI Enforcement, pp. 350–51. 

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 24 C.F.R § 115, subpart B. 

111 HUD Interrogatory, p. 26. The certification process is discussed in detail later in this chapter. 
 115

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 on-site Title VI compliance reviews to 

impart practical experience. 

 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. HUD 

also 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 

 

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. 
116 

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 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 that the initiative funded 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 worked together to develop partnerships and plans to allow Housing Choice Vouchers to be used throughout the underserved northern area of Illinois.120 

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 

 

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. 121 Peoples letter, p. 6. See HUD Interrogatory, pp. 30–31, for examples of downloadable documents. 
 117

that fair housing groups, academic institutions, and other private and public organizations conduct 

research and post findings on their Web sites. HUD says it appropriately 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 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 through FHEO’s 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 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 

 

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). 126 USCCR, Fair Housing Amendments Act Report, pp. 223–24. 
118 

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. 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 starting 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 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 

 

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 Fed. Reg. 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. 

134 Peoples letter, p. 7. 

135 Ibid. 

136 This paragraph focuses on HUD’s non-complex open cases. 
 119

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

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 secretary-initiated 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 in FY 2000 and 2002, and two in FY 2003.143 Furthermore, HUD eliminated separate fund-

 

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. 

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. 
120 

ing 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. 

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 

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 

 

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. 

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. 
 121

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. 

 HUD has made reducing aged complaint cases a priory, creating two indicators in the APP on 

this issue. FHEO has adopted them 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 broadbased 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. 

 

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. 

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. 
122 

 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 pre-award 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 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 pre-award 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 per-

 

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. 

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 
 123

centage 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 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 postaward 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 on-site program monitoring or compliance reviews under Title VI 

 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. 

161 USCCR, Federal Title VI Enforcement, p. 348. 
124 

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 on-site compliance reviews 

of all grant recipients on a rotating basis, at least once every three years. In addition, during postaward 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 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. 

 

162 HUD Interrogatory, p. 41. 

163 USCCR, Federal Title VI Enforcement, pp. 348–50. 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).” 
 125

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. 

 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 

 

166 USCCR, Federal Fair Housing System, p. 33. 167 USCCR, Fair Housing Amendments Act Report, p. 222. 
126 

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 

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 

 

168 HUD Interrogatory, p. 48. 

169 See U.S. Commission on Civil Rights Document Request #2. 170 HUD Interrogatory, pp. 46–47. 

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. 
 127

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 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) 

 

175 USCCR, Federal Title VI Enforcement, p. 351. 176 HUD Interrogatory, p. 48. 

177 U.S. Commission on Civil Right Document Request #2. 
128 

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 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 

 

178 USCCR, Federal Title VI Enforcement, pp. 350–51. 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. 
 129

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 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 evidence. HUD officials also indicated that FHEO re-

 

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. 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. 41284–91. HUD provided a copy of the guidelines. 

189 USCCR, Federal Fair Housing System, pp. 32–34. 
130 

gional 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 

This chapter 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, 69 percent are certified while 31 percent are in interim 

 

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. 
 131

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 applicantorganizations 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. 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 organiza-

 

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. 
132 

tions. 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 

cash 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 makes 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 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 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 
 133

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. 
134 

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. 
 135

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, two key positions are vacant. The assistant secretary for civil 

rights resigned October 31, 2003, and has not been replaced. The position of deputy assistant secretary for policy became vacant in November 2003; no one is acting in this position. The deputy assistant secretary for enforcement is “delegated the authority to perform the functions of the 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 

two top 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 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. 
136 

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 programspecific 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 and investigative manual, issued June 2004, 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 and investigative 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 DecisionMaking 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 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 up-
 137

dating 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 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. 
138 

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 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. 
 139

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 Five-Point 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 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 neces-
140 

sity.” 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. 

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. 
 141

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 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. 
142 

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 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.
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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 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 
144 

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. 

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 on-site 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 pre-award 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 onsite 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 full-scope 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 health-related 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. 
 145

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 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 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 
146 

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 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, 
 147

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. 

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 dis-
148 

abilities. 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. 

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 secretary-initiated 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. 
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Recommendation 4.9: HUD should expeditiously reinstate separate funding and staff for secretaryinitiated complaints. Moreover, it should without delay increase use of secretary-initiated 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 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. 
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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 (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. 
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Statement of Commissioner Jennifer C. Braceras 

On July 16, 2004, I voted against the report, Ten-Year Check-Up: Have Federal Agencies Responded 

to Civil Rights Recommendations? Volume IV, for the following reasons: 

As previously noted in published statements dissenting from earlier volumes in this series, I have serious reservations as to the scope and methodology used to prepare this entire series of reports. 

I continue to have concerns about the check-list developed in Volume I that serves as the framework 

for all subsequent volumes. In particular, I continue to object to the check-list’s call for extensive 

involvement by outside special-interest groups in the development and enforcement of federal civil 

rights policy. 

Moreover, I remain concerned about the Commission’s emphasis on “inputs” rather than “outputs” in 

evaluating the effectiveness of federal civil rights agencies. In this volume, the Commission continues to emphasize budget and staffing levels as measures of civil rights enforcement success. For example, in the introductory section to Chapter 6, the report states that the Department of Education’s 

Office for Civil Rights has experienced a 6 percent reduction in full-time equivalent staff. Although 

the agency reported that the vacancies did not hinder its abilities to fulfill its mission and responsibilities, the Commission report treats the reduction in staff as a “problem.” Instead of focusing on the 

number of FTEs and dollars spent by civil rights divisions, the Commission should limit the scope of 

its review to examining the productivity of these divisions and their level of success in reducing, deterring, and punishing discrimination. 

More globally, I wish to note that I object to the underlying premise of this entire project. This series 

of reports examines whether and how agencies have adopted previous recommendations of this 

Commission, many of which I believe to be unsound. Because I disagree with many of the underlying recommendations advanced by this Commission in previous reports, I cannot endorse a report 

that seeks to hold agencies responsible for implementing those recommendations. 

Accordingly, I respectfully dissent. 

Commissioner Jennifer C. Braceras 

July 31, 2004