GAO 

United States Government Accountability Office

Report to Congressional Committees

EQUAL 

EMPLOYMENT 

OPPORTUNITY 

Pilot Projects Could 

Help Test Solutions to 

Long-standing 

Concerns with the 

EEO Complaint 

Process 

August 2009 

GAO-09-712 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

August 2009

EQUAL EMPLOYMENT OPPORTUNITY

Pilot Projects Could Help Test Solutions to Long- standing Concerns with the EEO Complaint Process

Highlights of GAO-09-712, a report to 

congressional committees 

Delays in processing federal equal 

employment opportunity (EEO) 

complaints, apparent or perceived 

lack of fairness and impartiality in 

complaint processing, and fear of 

retaliation in the workplace have 

been long-standing concerns of the 

Equal Employment Opportunity 

Commission (EEOC), other federal 

agencies, and Congress. Based on a 

Notification and Federal Employee 

Antidiscrimination and Retaliation 

Act mandate, GAO analyzed 

(1) factors that EEO practitioners 

have identified as impeding the fair, 

prompt, and impartial processing 

of federal EEO complaints and 

(2) actions that EEO practitioners 

and other stakeholders think could 

be taken to help address those 

factors. GAO also identified actions 

that EEOC is taking to improve the 

federal complaint process. GAO 

surveyed 65 EEO practitioners 

representing a wide cross section 

of professionals knowledgeable 

about the federal EEO complaint 

process, who were selected from 

16 federal agencies that accounted 

for about 88 percent of complaints 

filed in fiscal year 2005, EEOC, and 

private sector attorneys’ offices. 

GAO did not assess the validity of 

practitioners’ views or evaluate the 

effectiveness of initiatives. 

What GAO Recommends

GAO recommends that if EEOC 

approves pilot projects to test ways 

to improve complaint processing, it 

should direct pilot project officials 

to develop sound evaluation plans 

and EEOC staff to review and 

approve such plans. EEOC agreed 

with GAO’s recommendations. 

GAO analyzed and grouped into eight, the factors that EEO practitioners 

identified as those they believed impeded the fair, prompt, and impartial 

processing of federal EEO complaints: (1) lack of accountability by some 

agency officials and EEOC practitioners in carrying out their responsibilities; 

(2) lack of sufficient resources by some EEO programs and EEOC to fulfill 

their responsibilities; (3) lack of independence by some agency officials, 

including undue interference by some agency legal counsel and human 

resources officials in EEO matters; (4) insufficient knowledge and skills by 

some agency officials and EEO practitioners; (5) lack of authority by some 

EEO officials to dismiss cases that have no merit and lack of subpoena power 

by EEOC administrative judges (AJ); (6) lack of clarity in regulation and some 

guidance and consistent decisions from EEOC; (7) lack of effective 

communication by some EEO practitioners of relevant oral and written 

information to participants and that alternative dispute resolution is available; 

and (8) lack of a firm commitment by some agency management and EEO 

officials to the EEO process. The practitioners’ views do not represent the 

official views of the selected agencies and should not be generalized to 

conclude that all federal agencies and EEO practitioners are deficient in all 

factors identified. Also, a few stakeholders GAO contacted stated that without 

the perception that the complaint process is fair, people may choose to not 

participate in it; GAO believes this concern is important and has been 

accounted for within the discussion of several of the factors. 

EEO practitioners surveyed and stakeholders suggested potential solutions to 

address the factors practitioners identified and provided information on 

relevant changes their agencies had made to the process. For example, to 

strengthen accountability, practitioners reported establishing measures for 

timeliness and quality for agency EEO professionals and those contracted to 

perform EEO complaint functions. To strengthen EEO staff’s independence, 

several practitioners and stakeholders offered that agencies should adhere 

more clearly to existing EEOC requirements on delineating the roles of the 

agency general counsels in the EEO process. Stakeholders offered potential 

advantages and disadvantages to allowing complainants to file directly with 

EEOC as a means to avoid real or perceived conflicts of allowing an agency to 

investigate a complaint against itself. Several practitioners and EEOC officials 

stated that providing subpoena authority to AJs could help improve the 

efficiency of the EEO complaint process by compelling witnesses to testify. 

To help agencies achieve model EEO programs, EEOC has begun to measure 

agencies’ progress in such areas as the timeliness of investigations. In June 

2008, EEOC announced a proposal that includes provisions that may address 

some of the factors that practitioners identified. The proposal would require 

that agency EEO programs comply with EEOC regulations and other guidance 

and that EEOC review those programs for compliance. The proposal also 

would permit agencies to conduct pilot projects to test new ways to process 

EEO complaints that are not presently included in existing regulations. 

View GAO-09-712 or key components.

For more information, contact George Stalcup 

at (202) 512-6806 or stalcupg@gao.gov. 
Page i GAO-09-712 

Contents 

Letter 1

Background 5 

EEO Practitioners Identified Factors That Impede the Prompt, 

Fair, and Impartial Processing of EEO Complaints 11 

EEO Practitioners and Other Stakeholders Proposed Solutions 

That They Believe Address the Identified Factors 16 

Improving Equal Opportunity in the Federal Workforce 34 

Conclusions 37 

Recommendations for Executive Action 38 

Agency Comments 38 

Appendix I Objectives, Scope, and Methodology 41 

Appendix II EEO Laws Applicable to Federal Employees 49 

Appendix III Comments from the U.S. Equal Employment 

Opportunity Commission 50 

Appendix IV GAO Contact and Staff Acknowledgments 52 

Table 

Table 1: Data on Average Days for Processing Formal EEO 

Complaints by Agencies and EEOC for Fiscal Years 2005 

through 2007 10 

Figures 

Figure 1: The EEO Administrative Complaint Process with Related 

Time Frames 8 

Figure 2: Selected Data on EEOC’s Appropriations, Number of AJs, 

and Hearings Inventory, Fiscal Years 2005 through 2008 14 

 Equal Employment Opportunity 
Abbreviations 

ADR alternative dispute resolution 

AJ administrative judge 

DOD Department of Defense 

EEO equal employment opportunity 

EEOC Equal Employment Opportunity Commission 

EPCA EEO Program Compliance Assessment 

FAD final agency decision 

FAST Federal Appellate Settlement Team 

FLRA Federal Labor Relations Authority 

MD management directive 

MSPB Merit Systems Protection Board 

No FEAR Notification and Federal Employee Antidiscrimination 

 and Retaliation 

OFO Office of Federal Operations 

OGC Office of General Counsel 

OPM Office of Personnel Management 

This is a work of the U.S. government and is not subject to copyright protection in the 

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without further permission from GAO. However, because this work may contain 

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Page ii GAO-09-712 Equal Employment Opportunity
Page 1 GAO-09-712 

 

United States Government Accountability Office

Washington, DC 20548 

 

August 12, 2009 

Congressional Committees 

The federal government is the nation’s largest employer and as such it has 

a special responsibility to ensure equal opportunity of employment for its 

employees and applicants for employment. In a high-performing 

workplace, federal employees must be able to pursue the missions of their 

organizations free from discrimination and should not fear or experience 

retaliation or reprisal. To help achieve such a workplace, 

antidiscrimination laws prohibit employment discrimination on the basis 

of race, color, gender, religion, national origin, age, and disability. Federal 

employees or applicants for employment who allege that they have been 

discriminated against by a federal agency may file equal employment 

opportunity (EEO) complaints with that agency. In addition, a person who 

files an EEO complaint or participates in the investigation of such a 

complaint is protected from retaliation. 

The Equal Employment Opportunity Commission (EEOC) has issued 

regulations that govern how the EEO discrimination complaints of federal 

employees are to be processed administratively and requires agencies to 

provide for the prompt, fair, and impartial processing of complaints.1

Under these regulations, the federal EEO process consists of two stages—

informal or precomplaint counseling, and formal, when a complaint is filed 

with the agency. The investigation into allegations of discrimination is a 

key component of the formal EEO process. EEOC regulations require 

agencies to investigate complaints they accept within 180 days.2

Complainants may request a final decision from the agency or a hearing 

before an EEOC administrative judge (AJ), who has another 180 days to 

issue a decision. However, failures by agencies and EEOC to adhere to the 

time frames in regulation have been a perennial concern. 

Delays in the processing of federal EEO complaints have been a longstanding concern of EEOC, other federal agencies, and Congress. Since 

the mid-1990s, we have reported that the EEO complaint process was 

1

29 C.F.R. 1614. EEOC has supplemented these regulations with additional guidance related 

to the processing of complaints with Management Directive 110. 

2

This period can be extended an additional 90 days when both parties agree. 

 Equal Employment Opportunity 
 

inefficient, expensive, and time-consuming.3 For example, in 2000, we 

testified that the complaint process and EEOC’s role in eliminating 

discrimination in the federal workplace had been targets of criticism 

because of the rising number of complaints, growing backlogs of 

unresolved cases, and increasing amount of time it takes to bring cases to 

a close.4

 In 2001 testimony during deliberation of the Notification and 

Federal Employee Antidiscrimination and Retaliation (No FEAR) Act,5

 we 

noted that the lack of data on the number of complaints of workplace 

discrimination made it difficult for agency managers to understand the 

nature and scope of issues in the workplace involving discrimination and 

other conflicts and develop strategies for dealing with those issues. We 

also stated that agencies and their leaders should be held accountable for 

providing fair and equitable workplaces free from discrimination and that 

individuals need to be held accountable for their actions in cases where 

discrimination has occurred. 

In 2002, Congress passed the No FEAR Act amid concerns about 

discrimination and retaliation against federal employees.6

 Through various 

provisions of the No FEAR Act, Congress sought to improve accountability 

by federal agencies in complying with antidiscrimination laws, finding that 

those agencies that practice or tolerate discrimination cannot be run 

effectively. More recently, in 2008, the Merit Systems Protection Board 

(MSPB) reported that its survey results on retaliation suggest that work 

remains to be done in creating a workplace where employees can raise 

concerns about organizational priorities, work processes, and personnel 

 

3

GAO, Federal Employee Redress: A System in Need of Reform, GAO/T-GGD-96-110 

(Washington, D.C.: Apr. 23, 1996), and Equal Employment Opportunity: Complaint 

Caseloads Rising, With Effects of New Regulations on Future Trends Unclear, 

GAO/GGD-99-128 (Washington, D.C.: Aug. 16, 1999). 

4

GAO, Equal Employment Opportunity: Discrimination Complaint Caseloads and 

Underlying Causes Require EEOC’s Sustained Attention, GAO/T-GGD-00-104 

(Washington, D.C.: Mar. 29, 2000). 

5

GAO, The Federal Workforce: Observations on Protections From Discrimination and 

Reprisal for Whistleblowing, GAO-01-715T (Washington, D.C.: May 9, 2001). 

6

Pub. L. No. 107-174 (May 15, 2002). 

Page 2 GAO-09-712 Equal Employment Opportunity
 

policies and decisions without fear of retaliation and where managers can 

respond to such concerns openly and constructively.7

Various requirements in the act, including those for agencies to report on 

the cases of alleged discrimination and their disposition and the number of 

employees disciplined for discrimination, were intended to enable 

Congress to more effectively oversee compliance by agencies. One 

mandate in the act required us to evaluate the effect on agencies and 

EEOC of allowing complainants to bypass the agency complaint process 

and instead file complaints directly with EEOC.8

Based on discussions and agreement with interested committees, we 

analyzed underlying concerns with the federal EEO complaint process and 

potential options and solutions for addressing them. We surveyed a wide 

cross section of individuals involved with the federal EEO complaint 

process who were familiar with and had knowledge of the process. We 

termed these individuals “EEO practitioners” and collected their informed 

views concerning the EEO complaint process. The seven EEO practitioner 

groups we contacted were agency EEO directors, investigators, 

counselors, and legal counsel; EEOC AJs and appeals attorneys; and 

plaintiffs’ attorneys.9

This report provides the results of our analysis of (1) factors that EEO 

practitioners have identified as impeding the prompt, fair, and impartial 

processing of federal EEO complaints and (2) actions that EEO 

practitioners and other stakeholders think could be taken to help address 

those factors, including potential implications of changes to the 

administrative EEO complaint process. We also include information on 

options offered by stakeholders and actions being taken by EEOC to 

improve equal opportunity and the EEO complaint process in the federal 

workforce. 

 

7

MSPB is an independent quasi-judicial agency in the executive branch that adjudicates 

employee appeals of personnel actions and conducts studies of the federal merit system. 

See Merit System Protection Board, The Federal Government: A Model Employer or a 

Work In Progress? Perspectives from 25 Years of the Merit Principles Survey

(Washington, D.C., September 2008). 

8

See § 206(a) of the No FEAR Act. 

9

These practitioners represent different parts of the complaint process, and some of the 

practitioners may only be familiar with their part of the process. 

Page 3 GAO-09-712 Equal Employment Opportunity
 

To identify factors that impede the processing of federal EEO complaints 

and ways to address these factors, we surveyed 65 EEO practitioners 

selected from 16 federal agencies that reported at least 50 complaints filed 

in fiscal year 2005 and EEOC.10 We also included plaintiffs’ attorneys from 

the private sector. We selected nine individuals from each of the seven 

practitioner groups to ensure balance and reduce possible bias in our final 

results.11 We did not select a member of every practitioner group from 

every agency. To identify actions for addressing the identified factors, we 

again used information from our survey and interviewed representatives 

from a variety of stakeholder organizations in the federal EEO complaint 

process, including federal employee unions, federal executive and 

managers associations, an agency attorney association, and federal 

employee organizations. The stakeholder organizations we contacted for 

this review do not represent all of the potential stakeholder organizations 

from specific groups protected by antidiscrimination laws. Additionally, 

we reviewed our prior reports and reports from EEOC and others in 

addressing both objectives. To identify actions taken by EEOC to improve 

equal opportunity in the federal workforce, we reviewed EEOC documents 

and interviewed EEOC officials. We report the views of practitioners who 

are knowledgeable of the federal EEO complaint process, but these views 

do not represent the official views of the 17 agencies. Moreover, the 

practitioners’ views cannot be generalized to conclude that all federal 

agencies and EEO practitioners are deficient in some or all the factors 

identified. The views expressed by the practitioners do not represent the 

views of GAO. Further, we did not assess the validity of the practitioners’ 

views of impediments or solutions to the EEO complaint processes or 

evaluate the effectiveness of initiatives that agency EEO practitioners said 

their agencies had implemented to improve their complaint process or 

those reported by EEOC. Appendix I contains a detailed description of our 

objectives, scope, and methodology. 

We conducted this performance audit from May 2006 through August 2009 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

 

10The 16 agencies represent about 88 percent of EEO complaints filed governmentwide in 

fiscal year 2005. 

11After we sent our survey to the 63 selected practitioners, 1 practitioner informed us that 

she did not work in one of our practitioner categories. As she was the only respondent 

from her agency, we sent the survey to another EEO practitioner at that agency. Also, when 

we did not receive a response from another practitioner at another agency, we then sent 

the survey to an official from her agency. Thus, we sent the survey to 65 EEO practitioners. 

Page 4 GAO-09-712 Equal Employment Opportunity
 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. 

The federal EEO complaint process consists of two stages, informal, or 

precomplaint counseling, and formal. Appendix II contains information on 

EEO laws applicable to federal employees. 

Background 

Informal Stage, or 

Precomplaint Counseling 

Under existing regulations, before filing a complaint, an employee must 

consult an EEO counselor at the agency in order to try to informally 

resolve the matter. The employee must contact an EEO counselor within 

45 days of the matter alleged to be discriminatory or, in the case of a 

personnel action, within 45 days of the effective date of the action. 

Counselors are to advise individuals that when the agency agrees to offer 

alternative dispute resolution (ADR) in the particular case,12 they may 

choose to participate in either counseling or in ADR. Counseling is to be 

completed within 30 days from the date the employee contacted the EEO 

office unless the employee and agency agree to an extension of up to an 

additional 60 days. If ADR is chosen, the parties have 90 days in which to 

attempt resolution. If the matter is not resolved within these time frames, 

the counselor is required to inform the employee in writing of his or her 

right to file a formal discrimination complaint with the agency.13

Formal Stage After a complainant files a formal discrimination complaint, the agency 

must decide whether to accept or dismiss the complaint and notify the 

complainant. If the agency dismisses the complaint, the complainant has 

 

12ADR generally refers to any procedure agreed to by the parties in a dispute that is used to 

resolve issues in controversy, including, but not limited to, conciliation, facilitation, or 

mediation. As of January 1, 2000, all federal agencies covered by 29 C.F.R. Part 1614 were 

required to establish or make available an ADR program during the informal (precomplaint 

counseling) and formal complaint stages of the EEO process. 

13The written notice must inform the employee of the (1) right to file a discrimination 

complaint within 15 days of receipt of the notice, (2) appropriate agency official with 

whom to file a complaint, and (3) duty to ensure that the agency is informed immediately if 

the complainant retains counsel or a representative. 

Page 5 GAO-09-712 Equal Employment Opportunity
 

30 days to appeal the dismissal to EEOC.14 If the agency accepts the 

complaint, it has 180 days to investigate the accepted complaint from the 

date the complaint was filed and provide the complainant with a copy of 

the investigative file.15 Within 30 days of receipt of the copy of the 

investigative file, the complainant must choose between requesting (1) a 

hearing and decision from an AJ or (2) a final decision from the agency.16

When a hearing is not requested, the agency must issue a final agency 

decision (FAD) within 60 days on the merits of a complaint. A complainant 

may appeal an agency’s final decision to EEOC within 30 days of receiving 

the final decision. 

In cases where a hearing is requested, the complaint is assigned to an 

EEOC AJ, and the AJ has 180 days to issue a decision and send the 

decision to the complainant and the agency.17 If the AJ issues a finding of 

discrimination, he or she is to order appropriate relief. After the AJ 

decision is issued, the agency has 40 days to issue a final order notifying 

the complainant whether the agency will fully implement the decision of 

the AJ, after which the employee has 30 days to file an appeal with EEOC 

of the agency’s final order.18 If the agency issues an order notifying the 

complainant that the agency will not fully implement the decision of the 

AJ, the agency also must file an appeal with EEOC at the same time. 

Following an appeal decision, both the complainant and the agency have 

30 days in which to request reconsideration of EEOC’s appeal decision. 

Decisions on appeals are issued by EEOC’s Office of Federal Operations 

(OFO), on behalf of the commission.19

 

14An agency may dismiss an individual’s complaint for a number of reasons, including 

failure to contact an EEO counselor in a timely manner, failure to file a complaint in a 

timely manner, or failure to state a claim based on covered discrimination. 

15This period can be extended an additional 90 days when both parties agree. 

16A complainant may request a hearing at any time after 180 days have elapsed from the 

filing of the complaint, regardless of whether the agency has completed its investigation. 

17The AJ can extend this time for issuing a decision by making a written determination that 

good cause exists to do so. 

18If the agency does not issue a final order within 40 days, the decision of the AJ becomes 

the final action of the agency. 

1929 C.F.R. § 1614.405. 

Page 6 GAO-09-712 Equal Employment Opportunity
 

A complainant may file a civil action in federal district court at various 

points during and after the administrative process.20 The filing of a civil 

action will terminate the ongoing administrative processing of the 

complaint. A complainant may file a civil action within 90 days of receiving 

the agency’s final decision or order or EEOC’s final decision. A 

complainant may also file a civil action after 180 days from filing a 

complaint with his or her agency or after filing an appeal with EEOC, if no 

final action or decision has been made. Figure 1 shows the EEO complaint 

process. 

 

20For allegations of discrimination under the Age Discrimination in Employment Act or the 

Equal Pay Act, individuals are not required to file an administrative complaint as a 

prerequisite to filing a civil action in court. See 29 C.F.R. § 1614.201(a) and § 1614.408. 

Page 7 GAO-09-712 Equal Employment Opportunity
 

Figure 1: The EEO Administrative Complaint Process with Related Time Frames 

Alleged

discriminatory

action occurs

EEO 

counselinga

Notice of right 

to file a formal

complaint

Formal complaint

filed with agency

Hearing not

requested

Dismissed

complaint

Final agency

decision

or order

Administrative

judge’s decision

Hearing requested

by complainant

before EEOC

administrative

judge

Appeal to

EEOC Accepted complaint

investigated and

report of investigation 

issued to complainant

Complainant and 

agency agreement 

to extend counseling

Informal

stage

Formal

stage

Additional

60 days

45 days

30 days

30 days

90 days

15 days

180 daysb

30 days

30 daysc

40 days

60 days

180 days

Source: GAO, based on EEOC regulations.

a

Where the agency agrees to offer ADR in the particular case, employees may choose between 

participation in ADR and counseling activities. ADR generally refers to any procedure agreed to by 

the parties in a dispute that is used to resolve issues in controversy, including, but not limited to, 

mediation. 

b

This period can be extended for up to an additional 90 days when both parties agree. 

c

If the final agency decision does not fully implement the AJ’s decision, the agency must file an appeal 

at the same time it issues the final decision. 

EEOC Management 

Directives Related to the 

Complaint Process 

In addition to regulations governing the EEO complaint process, EEOC 

has issued guidance in the form of management directives (MD) to help 

agencies process complaints and create a model EEO program. MD-110, 

revised in November 1999, provides federal agencies with policies, 

procedures, and guidance relating to processing EEO complaints, 

Page 8 GAO-09-712 Equal Employment Opportunity
 

including, among other things, the authority of the EEO director and the 

director’s reporting relationship to the agency head, mandatory train

requirements for EEO counselors and investigators, procedures for 

counseling and ADR, and the role of the AJ. In 2003, EEOC issued MD-715

which, among other things, establishes requirements for federal a

to create model EEO programs, including guidance for proactive 

prevention of unlawful discrimination. Under MD-715, each agency is to 

have an efficient and fair dispute resolution process and effective systems

for evaluating the impact and effectiveness of its EEO program and us

complaint tracking and monitoring system that permits the agency to 

identify the location, status, and length of time elapsed at each stage of the 

process and othe

ing 

, 

gencies 

e a 

r information necessary to analyze complaint activity and 

identify trends. 

thin 

rce 

t 

 that 

 

Among other requirements, EEOC regulations generally provide that 

agencies are to complete investigations of formal complaints within 180 

days of their receipt and issue FADs within 60 days for those cases where

a hearing is not requested. When a hearing is requested, AJs are to issue 

decisions within 180 days of receiving the complaint files from an agency.

EEOC regulations do not set time frames for resolving appeals, but in its 

most recent strategic plan, EEOC has set an annual performance measure 

that by 2012 70 percent of federal sector appeals are to be resolved wi

180 days. From fiscal years 2005 through 2007, appeals closures have

averaged from 194 to 230 days. Table 1 shows that although federal 

agencies have made improvements in the time it takes to process formal 

EEO complaints, they are still not meeting the deadlines in regulation. The

table includes data from EEOC’s annual reports on the federal workfo

on average processing days for investigations and FADs on merits of 

complaints, both including the U.S. Postal Service—which has the larges

number of EEO complaints—and without it, because the Postal Service 

complaint volume affects average processing times.21 These data show

in fiscal year 2007, the Postal Service completed investigations in an 

average of 106 days and FADs in 28 days. Table 1 also shows average 

Equal Employment Opportunity

f Complaint 

Processing 

Timeliness o

21We found the EEO processing data sufficiently reliable for our purposes; see GAO, Equal 

Employment Opportunity Commission: Sharing Promising Practices and Fully 

Implementing Strategic Human Capital Planning Can Improve Management of Growing 

Workload, GAO-08-589 (Washington, D.C.: June 23, 2008), in which we assessed the 

reliability of data EEOC used and found them to be sufficiently reliable for the purposes of 

the report. 

Page 9 GAO-09-712 
 

processing days for EEOC hearings decisions, which on average have 

exceeded requirements. 

Table 1: Data on Average Days for Processing Formal EEO Complaints by Agencies and EEOC for Fiscal Years 2005 through 

2007 

Agencies 

Investigation

(to ne in 180 days) 

sb

(to be done in 60 days) EEOC 

sa

be do

FAD

Fiscal year 

With Po

Service d

Without Po

Service 

With Po

Service 

Without Po

Service d

Hearing decisions 

(to be done in 180 da

stal 

ata 

stal 

data

stal

data

stal 

ata ys)c

2005 237 247 191 300 249

2006 186 242 135 211 274

2007 176 226 120 180 248

Source: EEOC. 

OC 

plaint file, and assigns an AJ. 

ior EEOC 

 request. 

s data on agency- and contractor-conducted investigations. 

s 

ng 

docket” 

08 according to a senior EEOC 

official, EEOC took an average of 56 days to docket a case after receiving 

 hearing request. In addition, only about 39 percent of hearings were done 

within the 180-day regulatory requirement. 

Notes: EEOC’s annual report for fiscal year 2007, which was the most recent report containing 

agency complaint data, showed that the Postal Service accounted for about 42 percent of completed

investigations in fiscal year 2007. In addition, the Postal Service accounted for about 60 percent of 

FADs. 

The average processing days for hearings do not include the time EEOC takes to “docket” a case—

that is, to send an order to the complainant and the agency that provides the parties with an EE

hearing case number, orders the agency to forward a copy of the com

According to EEOC’s Handbook for Administrative Judges, docketing a case is to be completed 

within 15 days of EEOC receiving a hearing request. In fiscal year 2008, according to a sen

official, EEOC took an average of 56 days to docket a case after receiving a hearing

a

Include

b

Includes those complaints for which a FAD was required when there was no AJ decision. 

c

The 180 days begins when the AJ receives the complaint file from the agency. 

Timeliness remains a problem. For example, according to EEOC official

in fiscal year 2008 EEOC took an average of 278 days to issue a heari

decision, but this period does not include the time EEOC takes to “

a case, that is, to send an order to the complainant and the agency that 

provides the parties with an EEOC hearing case number, orders the 

agency to forward a copy of the complaint file, and assigns an AJ. 

Although docketing a case is to be completed within 15 days of EEOC 

receiving a hearing request, in fiscal year 20

a

Page 10 GAO-09-712 Equal Employment Opportunity
 

When asked to identify factors that impeded the prompt, fair, and 

impartial processing of EEO complaints at their agencies and describe 

how those factors impeded the process, selected EEO practitioners 

provided hundreds of responses. Because these practitioners represent 

different parts of the complaint process and some of the practitioners may 

only be familiar with their part of the process, we could not tally the 

number of responses under each factor. While recognizing that the factors 

the practitioners identified are not necessarily discrete, we analyzed and 

grouped them into eight broad categories of factors and then asked those 

same EEO practitioners to rank them in terms of their importance for 

improving the federal EEO complaint process.22 These factors and their 

rankings are (1) lack of accountability on the part of some agency 

management officials and EEO practitioners in carrying out their 

responsibilities; (2) insufficient resources for some agency EEO offices 

and EEOC to fulfill their responsibilities; (3) lack of independence 

concerning the potential conflict of having agencies conduct their own 

EEO complaint investigations and the undue influence of some agency 

legal counsel and human resources officials on the EEO process; 

(4) insufficient knowledge and skills by some agency officials, 

complainants, and EEO practitioners to fulfill their responsibilities; 

(5) lack of authority by some EEO officials to dismiss cases that have no 

merit and lack of subpoena power by EEOC AJs; (6) lack of clarity in 

regulation and some guidance and consistent decisions from EEOC; 

(7) lack of effective communication by some EEO practitioners of relevant 

oral and written information to participants in the process and that ADR 

(e.g., conciliation, facilitation, or mediation) is available; and (8) lack of a 

firm commitment by some agency management and EEO officials to the 

EEO process. 

EEO Practitioners 

Identified Factors 

That Impede the 

Prompt, Fair, and 

Impartial Processing 

of EEO Complaints 

In our discussions with stakeholders, they generally concurred with these 

eight factors. In addition, a few stakeholders identified the perception of 

unfairness as an overarching theme. These stakeholders commented that 

without the perception that the complaint process is fair, people may be 

frustrated and choose to not participate in it. We discussed with these 

stakeholders that fairness is indeed one of the goals of the EEO 

complaints process, along with promptness and impartiality. The 

perception that the system is not fair, among other issues, has led to calls 

 

22We also had “Other” and “Not applicable” categories. Other included responses that did 

not fit into the eight factors, and not applicable responses fell mainly into two broad areas 

that were outside of the scope of our review: class action complaints and “mixed cases,” 

which allege discrimination and another prohibited personnel practice. 

Page 11 GAO-09-712 Equal Employment Opportunity
 

for reform and is directly related to our effort in this review to identify 

factors that need to be addressed. We agree that this concern is important 

and believe it has been accounted for within the context of the discussion 

on factors related to accountability; independence; and clarity in 

regulation, guidance, and consistent EEOC decisions. 

The eight factors are consistent with concerns raised previously about 

problems with the federal sector EEO complaint process. For example, in 

November 2002, EEOC held an open meeting to address issues with the 

EEO complaint process amid concerns from stakeholders representing 

both complainants and federal agencies that the process is “much too 

slow, far too expensive, unnecessarily cumbersome, and given to potential 

conflicts of interest.” In March 2003, a coalition of civil rights employee 

advocates and other stakeholder groups submitted a seven-step proposal 

to EEOC commissioners to improve the federal sector EEO complaint 

process.23 This proposal included steps to make ADR mandatory for 

managers in the informal and formal stages of the administrative process 

and have EEO directors report directly to the agency head, and a 

recommendation that EEOC adopt a uniform standard for what states a 

claim of employment discrimination. Additionally, in September 2006, the 

commission held a meeting where stakeholders discussed the practices 

that work in obtaining a timely, thorough, and complete investigation as 

well as the barriers that prevent such investigations.24 One issue raised in 

that meeting was the lack of consequences (related to accountability) for 

agencies that do not comply with the 180-day requirement to complete 

investigations. A commissioner noted that a double standard exists, 

because a complaint would be dismissed if a complainant missed any of 

the deadlines. The quality of investigations was another issue—for both inhouse and contract investigations. One participant stated that clear 

benchmarks need to exist with respect to the quality of the report of 

investigation, noting that in the end a poor investigation hurts the agency 

as well as the employee. 

 

23Coalition members included stakeholders representing the American Federation of 

Government Employees, the Council of Federal EEO and Civil Rights Executives, the 

National Association for the Advancement of Colored People, and several lawyers’ 

associations and law firms. On March 25, 2003, the coalition submitted its proposal to 

EEOC. 

24Among the participants were a supervisory AJ, union representatives, the Senior 

Executive Association, the Council of Federal EEO and Civil Rights Executives, and firms 

that contract with agencies to perform EEO investigations. 

Page 12 GAO-09-712 Equal Employment Opportunity
 

Lack of Accountability EEO practitioners indicated that there appear to be no consequences for 

some agency officials or EEOC practitioners for not adhering to time 

frames established in EEOC regulations. For example, if an employee files 

a formal discrimination complaint, an agency must decide whether to 

accept the complaint and has 180 days to investigate an accepted 

complaint. In cases where the complainant requests a hearing from an 

EEOC AJ, the AJ generally has 180 days to issue a decision after the 

complaint file has been received from the agency. While many respondents 

cited agencies and EEOC for not adhering to time frames, some also said 

that a lack of timely cooperation by complainants delayed the processing 

of complaints. 

Insufficient Resources for 

Agency EEO Offices and 

EEOC 

Many EEO practitioners across the various practitioner groups identified a 

lack of resources—staff and funding at some agency EEO offices and at 

EEOC—as impeding the timely processing of federal EEO complaints. For 

example, an EEO director and an investigator stated that because of 

understaffing, regulatory time limits are often exceeded. Another agency 

practitioner said that internal delays are also caused by a lack of resources 

in agency EEO offices. Several EEO practitioners stated that retirements 

and reassignments have made it difficult to keep counselors in agency 

EEO offices. Others mentioned problems with staffing levels at EEOC. 

One AJ noted that because of a lack of support staff, AJs spent time 

copying files, filing documents, making all of their own travel 

arrangements, and preparing closed case files for mailing. Figure 2 shows 

that as of fiscal year 2008, the number of AJs has decreased by about 13 

percent since fiscal year 2005 while EEOC’s hearings inventory has 

increased by 10 percent, and EEOC’s appropriations have generally 

remained constant, increasing by less than 1 percent. 

Page 13 GAO-09-712 Equal Employment Opportunity
 

Figure 2: Selected Data on EEOC’s Appropriations, Number of AJs, and Hearings 

Inventory, Fiscal Years 2005 through 2008

Source: GAO analysis of EEOC data.

4,000

6,000

8,000

Number

FY2005 FY2006 FY2007 FY2008

Number of administrative judges

EEOC appropriation

0 0

30

60

90

120

150

5,896

136

4,912

130

5,505

125

6,488

118

EEOC hearings inventory

//

50

100

150

200

250

300

350

Dollars (in millions)

$326.8 $326.9 $328.7 $329.3

Lack of Independence EEO practitioners raised concerns regarding the potential conflict of 

having agencies conduct their own EEO complaint investigations and 

agency offices or functions improperly interfering in the EEO complaint 

process (i.e., legal counsel and human resources professionals). For 

example, an AJ stated that agency-conducted investigations remain an 

impediment to impartiality and characterized such investigations as the 

“fox guarding the henhouse.” EEO practitioners specifically raised 

concerns regarding the perceived conflict of agency offices or functions 

improperly interfering in the EEO complaint process. For example, a 

plaintiff’s attorney stated that one problem that impedes the prompt and 

fair processing of complaints is the intrusion of agency defense counsel 

into the EEO process, despite EEOC’s guidance that agencies’ EEO 

functions and defense functions must remain separate. This practitioner 

further stated that many EEO offices get legal advice from the same 

agency component that defends the agency—a direct conflict of interest. 

An AJ added that although human resources and EEO offices should work 

together in resolving complaints and grievances, they should be totally 

Page 14 GAO-09-712 Equal Employment Opportunity
 

separated in the processing of EEO complaints because often allegations 

about personnel actions, including promotions, reassignments, and h

involve t

iring, 

he human resources office as the responsible management 

official. 

 in the 

aw by 

, 

ity 

of the work they perform is not systematically monitored or addressed. 

 lack 

egal 

s 

federal witnesses (e.g., witnesses 

who are no longer with the agency). 

w 

 AJs 

practitioner, an EEO investigator, stated that EEOC OFO appellate 

t Knowledge 

and Skills 

Insufficient Authority 

nce 

tent EEOC 

Decisions 

Many EEO practitioners expressed concerns that some participants

EEO complaint process, including EEO investigators, agency EEO 

directors, agency management, and EEO counselors, are not sufficiently 

knowledgeable of EEO regulations and guidance and of their 

responsibilities within the process. For example, several respondents cited

a general lack of knowledge of EEO or employment discrimination l

agency personnel processing complaints (e.g., EEO counselors and 

investigators). Many respondents cited poor quality of EEO investigations

and several cited investigators’ lack of skills. As one AJ remarked, when

investigations are of poor quality, the parties are required to engage in 

discovery at the EEOC level, which takes time and delays processing. 

Several practitioners raised concerns about AJs as well, including that 

some of them have insufficient experience and training and that the qual

EEO practitioners cited several concerns that some individuals and 

organizations responsible for carrying out federal EEO programs did not 

have sufficient authority to fulfill their responsibilities, including the

of sufficient authority to dismiss cases that do not meet criteria for 

discrimination and the lack of subpoena power to compel witnesses to 

testify and provide requested documents. According to an agency l

counsel, an AJ, and plaintiffs’ attorneys, the inability to subpoena 

witnesses during EEOC hearings can delay fact-finding and presents a 

difficulty to complainants in trying to prove their claims when witnesse

are reluctant to testify, including non

Some EEO practitioners indicated that more guidance is needed from 

EEOC on regulations and MDs and that EEOC decisions need to follo

judicial precedent and need to be consistent. Respondents provided 

numerous comments about the lack of consistency of AJ decisions with 

case law, and EEOC officials also acknowledged this concern. An AJ said 

that inconsistent EEOC OFO appellate decisions make it difficult for

and other parties to know what to do in certain situations. Another 

Insufficien

Lack of Clarity of EEOC 

Regulations and Guida

and Consis

Page 15 GAO-09-712 Equal Employment Opportunity
 

decisions can be inconsistent and unclear, making procedural decisions 

(e.g., dismissals) a “gamble.” 

Lack of Communication According to EEO practitioners, some individuals and organizations 

responsible for carrying out federal EEO programs sometimes do not 

effectively communicate relevant oral and written information on the EEO 

process to participants in a timely and effective manner. Also, as an 

agency legal counsel stated, it can be difficult at times to understand the 

actions alleged in a complaint, which results in further follow-up 

(sometimes more than once) with complainants to get the necessary 

information. Further, an AJ stated that an impediment to the early 

resolution of complaints is the lack of a requirement for managers to 

participate in ADR or mediation. 

Lack of Commitment EEO practitioners stated that some agency management and other 

individuals responsible for carrying out federal EEO programs lack a firm 

commitment to fair and timely processing of complaints. The lack of top 

management commitment to the EEO program can have a cascading effect 

on other officials and staff. For example, one practitioner stated that if 

executive management does not support the EEO complaint process, 

other management officials give it little importance or priority. An EEO 

investigator cited a lack of urgency at most agencies in resolving and 

investigating EEO complaints. 

EEO practitioners and other stakeholders provided potential solutions 

that they believe address the factors they identified as well as information 

on changes their agencies had made to the EEO complaint process. These 

practitioners also raised other options, beyond the potential solutions, for 

changing the EEO complaint process. EEOC has several initiatives under 

way or proposed for improving equal opportunity in the federal workforce. 

EEO Practitioners 

and Other 

Stakeholders 

Proposed Solutions 

That They Believe 

Address the Identified 

Factors 

Strengthening 

Accountability 

EEOC regulations require federal agencies to provide for the prompt, fair, 

and impartial processing of complaints and for the review and evaluation 

of managerial and supervisory performance to help ensure vigorous 

enforcement of equal opportunity. Further, according to EEOC’s MD-715, 

a model EEO program will hold managers, supervisors, EEO officials, and 

Page 16 GAO-09-712 Equal Employment Opportunity
 

personnel officers accountable for the effective implementation and 

management of the agency’s program. A majority of the respondents from 

the agencies and EEOC, as well as plaintiffs’ attorneys, identified agency 

management, agency EEO directors, EEO investigators, and EEOC 

management as the top four groups of EEO practitioners for which they 

believed that it was very or extremely important to strengthen 

accountability. Measures of accountability outlined in MD-715 include 

evaluating managers and supervisors on efforts to ensure equality of 

opportunity for all employees and routinely reviewing personnel policies 

to ensure that they are consistently applied and fairly implemented. For 

fiscal year 2007, EEOC reported that in fiscal year 2006 117 of the 167 

agencies that submitted MD-715 reports, or 70 percent, indicated that 

managers and supervisors were rated on their commitment to EEO. 

For strengthening accountability, EEO practitioners suggested ways to 

better hold accountable (1) agency management and EEO staff, including 

directors, counselors, and investigators; (2) EEOC management, AJs, and 

appellate attorneys; and (3) EEO complainants. For example, an EEO 

director suggested that implementing performance-based accountability 

measures for EEO directors could improve the timeliness and quality of 

complaint processing, which could enhance the fairness and impartiality 

of the EEO complaint process. Another practitioner advocated adopting 

measurable EEO performance standards for managers and supervisors at 

the GS-13 level and above. In its June 2008 notice of proposed rulemaking, 

EEOC included a requirement that an agency that has not completed an 

EEO investigation within the 180-day time limit is to notify the 

complainant in writing that the investigation is not complete, when it will 

be completed, and that the complainant has the right to request a hearing 

or file a lawsuit.25 EEOC stated its belief that such a requirement may 

shorten delays in agency investigations by providing an incentive for 

agencies to complete investigations in a timely manner. 

Several EEO practitioners stated that just as accountability within 

agencies is important, EEOC should also be held more accountable for 

adhering to time frames for steps in the process, such as issuing a hearing 

decision. As for holding complainants more accountable, one practitioner 

felt that a complaint should be dismissed if the complainant fails to 

 

25Under current rules, a complainant has the right to request a hearing or file a lawsuit 

when an investigation has not been completed within 180 days of the complaint being filed, 

but there is no requirement that agencies notify the complainant when the time has 

elapsed. 

Page 17 GAO-09-712 Equal Employment Opportunity
 

cooperate if the agency has met its responsibilities.26 The practitioner, an 

investigator, offered that complainants should be accountable for 

participating in a requested EEOC hearing after discovery and depositions 

have been conducted. According to this practitioner, EEOC should not 

allow the complainant to withdraw and request a FAD at this stage—if the 

complainant withdraws from the hearing at this stage, the complaint 

should be dismissed with no further action. 

Some respondents said that their organizations established time 

thresholds and quality standards for internal processes. For example, an 

EEO investigator reported that the timely processing of complaints has 

been tied to performance standards to help ensure that cases are promptly 

processed. Another EEO investigator’s agency established goals and 

measures for timeliness according to EEOC regulations and instituted 

quality standards for each centralized EEO process. Further, the agency 

established timelines and quality standards for both contractors and 

agency EEO professionals, and the agency developed measures in internal 

databases to track and monitor timelines and quality on daily, weekly, 

monthly, quarterly, and annual bases. An EEO director from another 

agency also reported that the agency achieved success in processing 

complaints by implementing performance-based accountability measures 

(i.e., internal timeliness and quality controls), including the following: 

standard operating procedures, stringent internal deadlines, timeliness and 

quality assurance review processes, timeliness and quality elements in 

results-based performance standards, management oversight, and EEO 

staff training. Finally, an EEO director reported that his agency had put in 

place a departmental accountability policy to track disciplinary and 

corrective actions taken as a result of discrimination-related misconduct. 

Because of numerous concerns raised both before and during the 

commission’s September 2006 meeting and subsequent focus group 

discussions, EEOC officials stated that the commission performed a 

limited assessment of the quality of agency investigations by having AJs 

complete surveys during selected periods from 2005 to 2007. Overall, from 

the limited assessment, the AJs reported that most of the reports of 

investigation were complete and well organized, containing enough 

evidence to allow the AJ to proceed with the hearing process. However, 

 

26Under 29 C.F.R. § 1614.107(a)(7), an agency may dismiss a complaint (any time prior to a 

request for a hearing) where the complainant has failed to cooperate. Instead of dismissing 

a complaint, an agency may proceed toward a decision if sufficient information is available. 

Page 18 GAO-09-712 Equal Employment Opportunity
 

the AJs reported that several agencies routinely submitted reports of 

investigation that were particularly lacking and described common 

deficiencies, including reports being disorganized and containing 

duplicative materials, being incomplete and always late, and containing an 

investigator’s statement of the claim that was legally insufficient. EEOC 

officials noted that the commission is considering developing a formal 

Quality Control Evaluation system that would rate the quality of agency 

investigations. However, EEOC officials did not provide a proposed time 

frame for this effort. 

Respondents also reported their agencies’ making greater use of 

information technology to process and track complaints. One practitioner 

noted that his agency had automated several features of the EEO 

complaint process, including the format of decisions through use of 

boilerplate language that can be selected for routine matters; parts of 

decision writing with its forms, such as coversheets, code sheets, and 

envelopes; and storage of case files that are scanned into the Adobe 

Acrobat program, thereby expediting the reviewing, bookmarking, and 

searching of these files. One EEO director reported that her agency 

standardized EEO complaint forms, installed the forms on compact discs 

that were furnished to all counselors, trained the counselors in the use of 

the electronic forms, and purchased an automated complaints tracking 

system to simplify and standardize EEO-related reports. Several 

practitioners (EEO directors, an EEO counselor, agency legal counsel, and 

an investigator) indicated that their agencies had put in place a complaints 

tracking system, which helps in the preparation of standardized reports. 

Without a system like this one, several reported, much time is consumed 

finding the information that needs to be in such reports. An official from 

EEOC’s Office of Field Programs indicated that EEOC has begun piloting 

an electronic case management system to provide more expeditious 

hearings case processing. Additionally, a senior official from MSPB 

described several actions that MSPB has taken to improve its operations, 

including establishing an electronic filing program and a repository of 

electronic documents that are available to the parties in cases. 

Providing Sufficient 

Resources at the Agency 

and at EEOC 

Regulations and EEOC MD-715 state that agencies should allocate 

sufficient resources to their EEO programs to, among other things, ensure 

that unlawful discrimination in the workplace is promptly corrected and 

addressed. More than three-quarters of the respondents from the agencies 

and EEOC as well as plaintiffs’ attorneys stated that it would be very or 

extremely important to improve the current allocation of resources for 

EEOC AJs, while about three-quarters of respondents felt that 

Page 19 GAO-09-712 Equal Employment Opportunity
 

improvement in the current allocation of resources for EEO investigators, 

agency EEO directors, and EEOC management was very or extremely 

important. 

Although it is important for agencies to provide sufficient resources for 

EEO programs, it is equally important for those programs to use those 

resources efficiently. One practitioner, an EEO investigator, reported two 

ways her agency uses resources efficiently. First, the investigator stated 

that her agency was shifting away from staff investigators and FAD writers 

to greater reliance on contractors and that the two firms her agency used 

delivered good quality products and were faster and more cost-effective 

than agency staff. Second, the investigator also reported that her agency 

was engaged in an activity-based costing exercise, so staff must account 

for all complaint-processing-related tasks, which her office can then cost 

out to the bureau where the complaints arose, allowing the bureaus to 

focus on early resolution to keep costs down. In addition, the greater use 

of information technology by some agencies, which was cited earlier as 

assisting agencies in saving time, can also help them in keeping costs 

down. An EEO director stated that EEOC should have the capacity to 

process workloads and accept evidence, records, and files electronically. 

At EEOC, where its hearings inventory has increased but its 

appropriations have generally remained constant, EEOC officials said that 

as of April 2009, the agency was in the process of completing draft 

instructions to implement the pilot “Three-Track Case Management 

Process” system for hearings that the agency expects will result in quicker 

resolutions and shorter processing times through expedited discovery and 

hearing time frames using its existing resources. Under this process, AJs 

would prioritize their cases based on complexity, using one of three 

tracks: fast, regular, or complex.27

Further, it is necessary that agencies assess the quality as well as the costs 

associated with contracted investigations and proposed FADs. EEOC’s 

2004 report on federal sector investigations and costs found that some 

agencies were incurring additional costs when they had to supplement the 

investigative report or require the contractor to conduct additional work, 

 

27“Fast track” cases contain simple issues for which complete investigations have been 

conducted but for which hearings must be held to resolve credibility problems; for “fast 

track” cases, the process will be expedited. “Regular track” cases are of average complexity 

and will be processed in a manner similar to current processing. A “complex track” case 

involves complex issues or other circumstances that require more time to reach a full and 

fair adjudication. 

Page 20 GAO-09-712 Equal Employment Opportunity
 

which could contribute to delays in meeting time frames.28 Several 

practitioners mentioned that agencies need to have better reviewers for 

sufficiency of investigations and to do quality control. For example, an 

agency legal counsel stated that at his agency, the EEO office reviews 

contracted reports of investigation and draft FADs but that reports of 

investigation were not always reviewed for completeness and relevance 

before being provided to the complainants. This practitioner pointed out 

that because of the lack of a quality review, often the agency or the 

complainant needed to get additional documents in discovery, although 

the agency had already paid for the preparation of a report of 

investigation. 

Strengthening 

Independence 

Within agencies, EEOC regulations and MD-110 require that EEO directors 

should be under the immediate supervision of the head of the agency. 

Placing the EEO director in this position underscores the importance of 

equal opportunity to the mission of the agency and helps ensure that the 

EEO director is able to act with the greatest degree of independence. In its 

fiscal year 2007 report on the federal workforce, EEOC reported that 61 

percent of the EEO directors reported to the agency head.29 In addition, 

EEOC’s MD-110 states that to maintain the integrity of the EEO 

investigative process, it should be kept separate from the agency’s 

personnel function, to avoid conflicts of interest or the appearance of such 

conflicts. Moreover, MD-110 states that separating the agency’s 

representatives and the offices responsible for defending the agency 

against EEO complaints from those responsible for conducting EEO 

complaint investigations enhances the credibility of the EEO office and 

the integrity of the EEO complaint process. 

At least three-quarters of plaintiffs’ attorneys and respondents from EEOC 

indicated that strengthening independence for EEO directors and EEO 

investigators was very or extremely important. Further, several EEO 

practitioners believe that agencies should adhere more clearly to existing 

EEOC requirements on delineating the roles of the agency general 

 

28Equal Employment Opportunity Commission, Federal Sector Investigations–Time and 

Cost (Washington, D.C., Aug. 25, 2004). 

29EEOC requires agencies with 100 or more employees to submit a report that captures 

information from EEO Form 462, which summarizes the details of each EEO complaint 

processed by an agency from October 1 of one year to September 30 of the next year. The 

report also contains summary information about agency staff resources, staff training, EEO 

director reporting lines, and contact information. 

Page 21 GAO-09-712 Equal Employment Opportunity
 

counsels in the EEO complaint process. For example, an EEO director 

stated that EEO legal advisors should be separate and distinct from the 

agency’s legal office and should report to the head of the civil rights office 

instead of to agency legal counsel. Several EEO practitioners also stated 

that agency human resources offices should be required to avoid activities 

or actions that may be construed as having undue influence. An AJ favored 

having clear firewalls between the human resources and EEO offices 

when investigating complaints. In its March 2003 proposal, the coalition of 

civil rights employee advocates and other stakeholder groups 

recommended that EEOC’s regulations and MD-110 be changed to clearly 

prohibit agency actions that interfere with the independent judgment of 

the EEO investigator. Noting that stakeholders have complained of 

intrusion in the operations of the agency EEO office by staff responsible 

for defending the agency against complaints of discrimination and that 

such intrusion could affect the impartiality of the investigation, EEOC 

officials stated that EEOC has draft guidance on the intrusion into the 

EEO process by agency counsel, especially in the informal part of the 

process, which is being reviewed by the commissioners. 

Because of the concern that the practice of allowing an agency to 

investigate a complaint against itself can represent either a clear conflict 

of interest or the appearance of such conflict, practitioners cited filing 

complaints directly with EEOC as a means of avoiding such conflicts. 

Allowing such filings would alter the current administrative complaint 

process. Stakeholders cited several advantages to having EEOC conduct 

investigations. One advantage would be its potential to reduce concerns 

regarding independence, conflicts of interest, and perceptions of 

unfairness surrounding the existing federal EEO complaint process. 

Another advantage stakeholders cited was EEOC’s potential to leverage its 

expertise, which in addition to administering the federal sector EEO 

process, promulgating regulations, providing EEO training, and collecting 

governmentwide data on EEO activities, also includes investigating private 

sector complaints of discrimination. According to stakeholders, potential 

disadvantages of transferring investigations to EEOC included 

• adding an immense burden along with insufficient resources for EEOC 

to handle the larger workload, which would add more time to the 

complaint process and compound the time it takes EEOC to make 

decisions in EEO complaint processing, and 

• creating tension between the various roles the agency is responsible 

for when one agency is afforded too many functions (e.g., 

investigations, decisions, and appeals) under the EEO process, which 

may impair neutrality, fairness, and accountability. 

Page 22 GAO-09-712 Equal Employment Opportunity
 

EEOC officials noted that an overwhelming number of stakeholders who 

testified at the September 7, 2006, commission meeting or participated in 

focus groups conducted after that meeting recommended that EEOC take 

over the investigative function in its entirety from the agencies or that 

some type of independent body apart from EEOC assume this function.30

According to EEOC officials, stakeholders cited the conflict of interest 

perception and agencies’ failure to complete their investigations in a 

timely manner as the principal reasons. EEOC also noted its belief that 

having it conduct the federal sector investigations would also bring 

efficiency, uniformity, and quality to the process as the commission would 

either hire a cadre of investigators dedicated to the federal sector or 

possibly act as a conduit for contract investigations. In the past, EEOC 

stated that fiscal realities have prevented it from assuming responsibility 

for all federal sector investigations, noting that in fiscal year 2008, 

agencies conducted over 11,000 investigations at a cost of a little more 

than $36 million. Thus, according to EEOC officials, the resource 

implications of EEOC assuming the investigative function would be 

considerable, and the various ways of funding investigations by EEOC 

need further study. 

Several EEO practitioners mentioned addressing independence through 

the use of contractors for conducting investigations and drafting FADs. 

The Postal Service’s Office of Inspector General reported that the Postal 

Service contracts investigations to enhance the independence and 

neutrality of the EEO administrative process and to improve the overall 

quality and efficiency of investigations.31 The report states that a single 

office from the Postal Service National EEO Investigative Services Office 

oversees investigations and contract FAD writers. This report did not 

address the quality of the investigations. As mentioned earlier, it is 

important that agencies review the quality of contract investigations. 

Enhancing Knowledge and 

Skills 

In its 2004 report on federal sector EEO investigations and cost, EEOC 

cited the importance of federal agencies having EEO programs staffed 

with employees who have the necessary knowledge, skills, and abilities to 

 

30Stakeholders who spoke at the meeting included union representatives and 

representatives of companies that partnered with agencies to conduct EEO investigations. 

31U.S. Postal Service, Office of Inspector General, Management Advisory: The Postal 

Service’s Equal Employment Opportunity Contracting Function, Report Number HM-MA08-001 (Washington, D.C., Feb. 21, 2008). 

Page 23 GAO-09-712 Equal Employment Opportunity
 

help reduce the time it takes to conduct investigations. More than threequarters of our survey respondents from the agencies and EEOC as well as 

plaintiffs’ attorneys pointed to the importance of investigators enhancing 

their current level of knowledge and skills in the federal EEO complaint 

process. Almost three-quarters of respondents cited enhancing the 

knowledge and skills of EEO directors and agency management as very or 

extremely important, and about two-thirds of respondents cited enhancing 

the knowledge and skills of EEO counselors as very or extremely 

important. Several EEO practitioners offered suggestions for enhancing 

the knowledge and skills of EEO staff. For example, a plaintiffs’ attorney 

offered that counselors should be required to spend at least 8 hours 

observing an experienced counselor before providing counseling. EEOC’s 

MD-110 requires at least 32 hours of counselor training before providing 

counseling as well as 8 hours of continuing annual training.32 As for 

investigators, another plaintiffs’ attorney, noting that the minimum 

requirements in EEOC guidance for investigators is insufficient, stated that 

EEOC should expand the minimum training and experience requirements 

and require additional annual continuing education. Similar to the training 

required for counselors, MD-110 also requires at least 32 hours of 

investigator training before conducting investigations as well as 8 hours of 

continuing annual training. Several practitioners and stakeholders 

suggested that investigators should receive some kind of certification. One 

practitioner recommended that EEOC certify individual investigator 

credentials through a combination of agency-provided training or by 

licensing training programs that meet EEOC-established minimum 

requirements, and require every investigator, whether in-house agency 

employee or contract investigator, to apply for and be certified as meeting 

the minimum requirements. 

Some respondents said that their organizations had improved training for 

EEO staff. For example, an EEO director reported that her agency has 

standardized its basic and advanced EEO counselor training class. The 

director’s office has coordinated with the agency’s ADR office and office 

of inspector general to participate in the training. All bureaus send 

counselors to the same course, and counselors are issued credentials at 

the end of the training by the agency. An EEO counselor reported that her 

agency trained all EEO specialists to be EEO counselors and investigators 

 

32To help improve the knowledge and skills of agency EEO staff, EEOC offers a variety of 

training courses through its Training Institute. Courses include investigator and counselor 

training, drafting letters of acceptance and dismissal, and drafting FADs. 

Page 24 GAO-09-712 Equal Employment Opportunity
 

and to write dismissals and FADs. This practitioner noted that providing 

all EEO staff with all available EEOC training can enhance their 

understanding of the process from start to finish, thereby increasing 

completeness, accuracy, and effectiveness of complaint processing. An 

EEO counselor from another agency reported that at her agency there is a 

focus on developing the legal analysis skill set of EEO specialists who 

process complaints. During team meetings, the EEO specialists review 

intake decisions and FADs that they have prepared, and the specialists 

brief the team on the legal analysis conducted and the rationale for 

decisions. Counselors attend these meetings to increase their 

understanding of the bases for dismissal, the types of questions that need 

to be asked during the counseling inquiry, and the legal implications of 

new case decisions. 

Increasing Authority of 

EEO Directors and AJs 

Almost all EEOC practitioners and plaintiffs’ attorneys and a majority of 

agency respondents indicated that it would be important to increase the 

current level of authority of EEOC AJs, and most respondents cited 

increasing authority for agency EEO directors as very or extremely 

important. EEO practitioners cited a need for subpoena power for AJs, 

who currently do not have this authority. In addition, EEO practitioners 

expressed the desire for expanded authority for (1) EEO directors to 

dismiss complaints of discrimination and (2) EEOC to order discipline 

against managers who discriminate. Practitioners also expressed a desire 

for EEOC to make sufficient use of its authority to sanction agencies that 

do not complete investigations on time. 

Several EEO practitioners felt that allowing AJs to subpoena witnesses 

would improve the EEO complaint process. An agency legal counsel cited 

cases where the agency and complainant suffer when potential witnesses, 

such as those who are no longer with the agency, refuse to testify. Until 

AJs are given such power, a plaintiffs’ attorney felt that the administrative 

complaint process cannot serve its intended purpose as a viable 

alternative to litigation in federal courts. While EEOC AJs have authority 

to sanction an agency for failure to produce an approved witness who is a 

federal employee,33 they do not have the authority to subpoena the 

statements of individuals and therefore have no mechanism with which to 

compel the testimony of witnesses who are not current federal employees. 

With respect to subpoena power, according to MSPB officials, the board 

 

33See MD-110, ch. 7, III, D. 10. 

Page 25 GAO-09-712 Equal Employment Opportunity
 

has delegated to its regional directors/chief administrative judges and AJs 

the authority to subpoena witnesses.34 EEOC officials also favor granting 

EEOC’s AJs subpoena power, noting that AJs have often voiced the belief 

that their lack of subpoena power is a significant defect in the hearings 

process, in many cases hindering their ability to conduct full and fair 

hearings. For instance, without subpoena authority, it is often difficult for 

AJs to compel a potential witness for the complainant, such as an agency’s 

outside medical personnel or a contractor employee, to testify on the 

complainant’s behalf. Although AJs use a variety of means to try to 

persuade former employees, contractors, and outside medical personnel 

to testify, it would be more efficient if AJs possessed subpoena authority. 

EEOC officials stated that having subpoena authority would further ensure 

that AJs have access to all relevant evidence. However, according to 

EEOC’s Office of Legal Counsel, granting subpoena power to AJs would 

potentially require a statutory change.35 According to a senior EEOC 

official, EEOC has not sought such a statutory change. 

An example of expanded authority for EEO directors relates to the 

dismissal of complaints of discrimination. EEOC regulations set out 

circumstances under which complaints can be dismissed,36 including 

complaints that fail to state a claim of discrimination. In this regard, EEOC 

has consistently reversed agencies’ dismissals for failure to state a claim 

where the agency dismissal is based on the agency’s view of the ultimate 

merit of the complaint allegations.37 An EEO investigator stated that EEO 

directors should be given the authority to make a merit analysis to dismiss 

those claims that are frivolous and show self-defeating evidence to ensure 

quicker and less costly processing of cases.38 In cases that are dismissed, 

complainants could still appeal such decisions to EEOC. 

 

34See 5 U.S.C. § 1204(b)(2)(A) and 5 C.F.R. § 1201.81. 

35Section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, 

which addresses EEOC’s role in the federal sector, does not refer back to the provision (42 

U.S.C. § 2000-9) granting subpoena authority for private sector enforcement under Title VII. 

3629 C.F.R. § 1614.107 (a). 

37See, for example, Presley v. United States Postal Service, EEOC Request No. 0120090625 

(Mar. 17, 2009), and Cobb v. Department of the Treasury, EEOC Request No. 05970077 

(Mar. 13, 1997). 

38Of 15,805 complaints closed in fiscal year 2007, merit decisions were issued in 7,673 

cases. In other cases that were closed, the complaint was dismissed or withdrawn or a 

settlement was reached by the complainant and agency. Of the 7,673 cases with merit, 

discrimination was found in 216 (2.8 percent). 

Page 26 GAO-09-712 Equal Employment Opportunity
 

As for the authority to order discipline for managers who have been found 

to have discriminated, EEOC’s practice is to advise rather than direct 

agencies to consider disciplining such managers. In addition, the No FEAR 

Act requires agencies to report information annually on disciplinary 

actions taken.39 The act also requires the President’s designee, the Office of 

Personnel Management (OPM), to undertake a study of best practices 

among agencies for taking disciplinary action for conduct inconsistent 

with antidiscrimination laws and whistleblower protection laws.40 OPM 

issued the advisory guidelines in September 2008; agencies have not yet 

reported actions they have taken consistent with these guidelines. 

EEOC regulations provide for sanctions against parties for failure (without 

good cause shown) to respond fully and in a timely fashion to an order of 

an AJ, to discovery requests, or to requests for the attendance of 

witnesses. Sanctions include the drawing of adverse inferences against, or 

exclusion of other evidence offered by, the noncomplying party, issuing a 

decision fully or partially in favor of the opposing party, or such other 

actions as appropriate.41 Specifically, AJs may impose monetary sanctions 

where the agency has failed to complete an investigation that is timely, 

adequate, or both, including requiring agencies to bear the costs for the 

complainant to obtain depositions or other discovery.42 EEOC’s OFO can 

also sanction agencies at the appellate level.43 Some practitioners stated 

that EEOC does not make sufficient use of its sanctioning authority. On 

the matter of sanctioning authority, EEOC officials stated that AJs are 

guided by OFO decisions on sanction authority, that the agency is 

considering issuing further guidance to AJs, and that it will include 

training on the appropriate use of sanctions in federal sector training of 

AJs to be held later in 2009. 

 

39Agencies are to report annually to the Speaker of the House of Representatives, the 

President Pro Tempore of the Senate, the Senate Committee on Governmental Affairs, the 

House Committee on Government Reform, each committee of Congress with jurisdiction 

relating to the agency, EEOC, and the Attorney General. 

40OPM used these terms as defined in 5 C.F.R. 724.102. 

4129 C.F.R. § 1614.109(f)(3). 

42See, MD-110, ch. 7, III, B. and IV, F. 

4329 C.F.R. §1614.108(c)(3). 

Page 27 GAO-09-712 Equal Employment Opportunity
 

Increasing the Clarity of 

EEOC Regulations and 

Guidance and Consistency 

of EEOC Decisions 

In commenting on the importance of increasing the clarity and consistency 

of antidiscrimination laws (e.g., Title VII of the Civil Rights Act), EEOC 

regulations and guidance (e.g., MD-110 and MD-715), and EEOC decisions 

(e.g., decisions by AJs and appellate attorneys), the majority of EEO 

practitioners responding felt that it was most important to increase the 

clarity and consistency of EEOC decisions. Primarily, practitioners 

indicated that increasing the consistency of decisions at several levels 

within EEOC was very or extremely important: decisions from EEOC’s 

OFO appellate attorneys, decisions by AJs, and decisions resulting from 

requests for reconsideration of appeals decisions. An EEO investigator 

suggested that EEOC’s OFO should index its decisions and cross-check 

them for consistency so that only those decisions that express a cogent, 

correct application of the law should be indexed and made available as 

precedent. According to a senior EEOC official, EEOC began to conduct 

quality reviews of AJ decisions in fiscal year 2007 by reviewing a sample of 

files from all offices to assess the legal adequacy of decisions and the 

consistency with case law as well as to determine whether time frames 

were met. The official said that EEOC officials share the results of the 

reviews with AJs through monthly conference calls and quarterly video 

conferences. In addition, according to EEOC, through a technical 

assistance group, EEOC staff visit selected field offices to review files for 

cases and decisions. 

Noting the importance of the AJ position, one practitioner stated that 

EEOC should establish better qualifications for its AJs, including a 

minimum of 5 years litigation or related EEO or civil rights experience and 

that the position should be given a higher grade to make the position more 

competitive. MSPB, which also employs AJs to hear and decide appeals 

from former and current federal employees, applicants for federal 

employment, and federal annuitants concerning any matter over which the 

board has appellate jurisdiction, hires AJs in the range of GS-13s through 

GS-15s and has established timeliness, quality, and production standards 

for their performance. At EEOC, AJs can be hired at the GS-11 to the GS-13 

level with promotion potential to GS-14. EEOC officials stated that the 

agency recognizes that a range of experience is important to adjudicate 

complex federal employment cases. 

Some practitioners indicated that they would like EEOC to make changes 

to its regulations or guidance. For example, one practitioner, a plaintiffs’ 

attorney, stated that EEOC should review its federal sector regulations 

with the aim of identifying and eliminating (or modifying) those provisions 

that undermine effectiveness and fairness. An agency legal counsel stated 

that EEOC must establish clear guidelines for the conduct of agency 

Page 28 GAO-09-712 Equal Employment Opportunity
 

counsel and their role in the EEO process. Practitioners and stakeholders 

expressed the need for clarification regarding the dismissal of complaints, 

specifically addressing dismissals for (1) failure to state a claim (including 

complaints alleging a hostile work environment), (2) abuse of the process, 

and (3) failure to cooperate. 

Also, in its March 2003 proposal, the coalition of civil rights employee 

advocates and other stakeholder groups recommended that EEOC adopt 

uniform standards for what states a claim of employment discrimination. 

Under this recommendation, complaints could be dismissed on these 

grounds either at the agency, before the complaints are investigated, or 

after a hearing request is submitted. While noting that its regulations 

provide standards for dismissing complaints that do not state a claim and 

that based on case law, EEOC has also broadly construed what actions 

may constitute a claim, EEOC officials stated that the commission is 

considering recommendations by internal and external stakeholders to 

provide additional guidance. 

Improving Communication 

throughout the Complaint 

Process 

EEOC MD-110 states that in the precomplaint process, counselors should 

create an atmosphere that is open to good communication and dialogue. 

EEOC regulations require agencies to establish ADR programs, and EEOC 

MD-715 encourages the widespread use of an ADR program that facilitates 

the early, effective, and efficient informal resolution of disputes. 

According to EEOC, such programs can help agencies to avoid the time 

and costs associated with more formal dispute resolution processes and 

improve workforce communication and morale. Almost all respondents 

indicated that improving communication during the informal or 

precomplaint phase, claim acceptance/dismissal, and complaint 

investigation was very or extremely important. Also, about three-quarters 

of respondents indicated that improving communication during ADR was 

very or extremely important. Several EEO practitioners suggested that 

ADR should be used more often in disputes or even made mandatory. For 

example, a plaintiffs’ attorney offered that for ADR to be successful, 

agencies need to ensure that officials do not merely “go through the 

motion” on ADR but that an official at an appropriate level of authority 

represents management and that this official has settlement authority. In 

addition, in its March 2003 proposal, a coalition of civil rights employee 

advocates and other stakeholder groups recommended making ADR 

mandatory for managers in the informal and formal stages of the 

administrative process and for EEOC hearings. 

Page 29 GAO-09-712 Equal Employment Opportunity
 

Several counselors reported that their agencies gave employees the option 

of using ADR in the informal and formal stages of the EEO complaint 

process as a means for resolving an EEO concern. According to one 

counselor, using ADR in this way focuses both parties on the objective of 

resolving the conflict rather than defending their respective positions. 

Another counselor reported that at her agency, at the time that contact is 

made with the informal EEO process, her agency gives employees the 

option—explained verbally and in writing—of traditional counseling or 

mediation (i.e., a type of ADR) when they initially begin the informal EEO 

process. Mediation is offered 100 percent of the time at initial contact, and 

ADR may be offered again in the formal stage of the process if the case 

proceeds. This practitioner found that offering ADR services is helpful in 

resolving complaints at the lowest possible level. 

Almost universally, stakeholder groups believed that counseling should be 

done at agencies, and EEOC also favors leaving the counseling 

responsibilities with the agencies. Two stakeholders explained that EEO 

counselors who work in an agency possess a familiarity with the 

organization’s operations, culture, and leadership and that keeping 

counseling at the agencies enables counselors to see problems firsthand 

while giving agencies opportunities to correct problems and demonstrate 

some commitment to EEO principles. EEOC officials stated that 

stakeholders have recommended that the commission ensure that during 

counseling, agencies provide better, more understandable, and more 

consistent information describing the EEO process and complainants’ 

rights and responsibilities therein. 

In its 2008 performance and accountability report, EEOC noted that 

precomplaint EEO counseling and ADR programs addressed many 

employee concerns before they resulted in formal complaints. Of the 

37,809 instances of counseling in fiscal year 2007, about 56 percent did not 

result in a formal complaint because of either settlement by the parties or 

withdrawal from the EEO process. According to EEOC’s 2007 report, 

agencies’ ADR offer, participation, and resolution rates varied widely. For 

example, the Postal Service offered ADR in about 93 percent of 

precomplaint counseling, while the other agencies’ offer rate was about 71 

percent, with some agencies not offering ADR in any counseling sessions. 

The governmentwide ADR participation rate in fiscal year 2007 was 48 

percent. The Postal Service, which requires management to participate, 

reported the highest rate of ADR participation (about 76 percent) 

compared with the average participation rate of about 25 percent among 

other agencies. According to EEOC’s 2007 annual report, complainants 

rejected ADR offers 10 times more often than agencies. Similarly, the 

Page 30 GAO-09-712 Equal Employment Opportunity
 

Postal Service had an overall resolution rate of about 75 percent, while the 

rate for other agencies was about 46 percent. 

EEOC officials reported taking a number of actions to encourage more use 

of ADR, such as updating EEOC’s federal sector ADR Web page to 

improve the delivery of information on the benefits of ADR and ADR best 

practices; providing technical assistance through e-mail, telephone 

contacts, and on-site visits, as requested; and participating in federal ADR 

work groups and agency conferences. The commission also reported 

establishing the Federal Appellate Settlement Team (FAST) Program to 

utilize ADR techniques to resolve EEO appeals that have been filed in 

OFO. The FAST Program focuses on appeals that have been decided based 

on FADs on the merits. According to EEOC, qualified EEOC staff, who are 

experts in federal sector EEO law, conduct ADR to assist parties in 

reaching a mutually satisfactory agreement. Participation in the FAST 

Program is voluntary for both parties. 

Two practitioners made suggestions that would further communication 

outside of an ADR program. One described a precomplaint resolution 

program to address all issues involving the terms and conditions of 

employment, including EEO complaints. This practitioner stated that the 

program generally has been successful in resolving issues that do not 

belong in the EEO process, addressing matters before they become formal 

EEO complaints, and correcting situations that could result in a hostile 

environment or harassment claims. An EEO counselor suggested 

increased training in conflict management and effective communication 

for employees and supervisors as well as including conflict management in 

both performance plans to focus the responsibility for resolving everyday 

conflicts on the parties themselves, rather than bringing in a third party. 

Reinforcing Commitment 

at All Levels in the EEO 

Complaint Process 

Our prior work has shown that commitment from top management is key 

to successful management improvement initiatives. For example, our work 

on leading diversity management identified top management commitment 

as a fundamental element in the implementation of diversity management 

initiatives.44 Similarly, EEOC MD-715 emphasizes the importance of 

demonstrating commitment to equality of opportunity for all employees 

and applicants for employment that is communicated throughout the 

 

44See GAO, Diversity Management: Expert-Identified Leading Practices and Agency 

Examples, GAO-05-90 (Washington, D.C.: Jan. 14, 2005). 

Page 31 GAO-09-712 Equal Employment Opportunity
 

agency from the top down. Agency heads have many ways to demonstrate 

commitment to equal opportunity and a workplace free of discriminatory 

harassment, but one important way is to provide the EEO director with “a 

seat at the table,” that is, access to the agency head. Having the EEO 

director report to the head of the agency sends a message to employees 

and managers about the importance of and commitment to the EEO 

program. An EEO practitioner stated that agencies should adhere more 

clearly to existing EEOC requirements on delineating the reporting lines of 

authority for EEO directors. 

EEOC advises that following each yearly submission of the MD-715 report 

to EEOC, EEO directors should present the “state of the EEO program” to 

the agency head outlining, among other things, the effectiveness, 

efficiency, and legal compliance of the agency’s EEO program. EEOC 

reported in its fiscal year 2007 annual report that 63 percent of EEO 

directors presented such a report. EEOC also emphasized that ensuring 

that the EEO professionals are involved with and consulted on 

management and deployment of human resources, providing managers 

with training in EEO-related matters, having managers and employees 

involved in implementing the EEO program, and informing employees of 

the EEO program are other important aspects of demonstrating 

commitment to the EEO program. 

A majority of respondents indicated that it would be very or extremely 

important for agency management, agency EEO directors, and EEO 

investigators to reinforce their current level of commitment to the federal 

EEO complaint process. According to one EEO practitioner, agencies need 

to make the EEO function a priority, in terms of importance, expectations, 

and oversight. Another demonstrated means of support from the agency 

head, as one practitioner stated, is adequate funding and staffing of the 

EEO function within the agency. For example, an EEO counselor 

indicated that agencies have to move away from “dumping” agency 

employees in EEO offices and instead staff those offices with individuals 

who have the appropriate skill sets, perhaps even legal backgrounds, to 

develop credible programs. According to a plaintiffs’ attorney, EEO must 

receive support from agency heads, and EEOC’s most recent federal 

workforce report shows that a significant percentage of agency heads did 

not issue an annual statement supporting EEO as recommended by EEO 

guidance. The practitioner suggested that agency heads who could not 

bother to issue a statement certainly could not be bothered to make EEO 

an agency priority. In its fiscal year 2007 annual report, EEOC reported 

that of the 167 agencies and subcomponents that submitted fiscal year 

2006 MD-715 reports, 68 percent of the agencies issued EEO policy 

Page 32 GAO-09-712 Equal Employment Opportunity
 

statements, an increase over the 50 percent of the 158 agencies and 

subcomponents that submitted MD-715 reports in fiscal year 2005. 

Raising Other Options for 

Changing the EEO 

Complaint Process 

Stakeholders raised other options for changing how EEO complaints are 

processed that were outside of the eight factors that we used to group 

participant and stakeholder responses and solutions. For example: 

• Some stakeholders noted the considerable amount of time that can 

elapse from the filing of a formal EEO complaint through the 

administrative process to the potential conclusion of the matter in 

federal court and suggested that complainants be given the choice of 

using the administrative or the judicial process but not be permitted to 

use both. Under this option, stakeholders provided that the 

administrative process could afford the right to a judicial appeal of that 

administrative decision to a U.S. federal court of appeals. 

• Other stakeholders, concerned with the multiple forums that 

complainants have available, suggested an administrative tribunal, 

which could handle all variety of issues, including discrimination, 

prohibited personnel practices, and unfair labor practices. 

Stakeholders indicated that this could avoid the problem of a matter 

going to more than one forum and could avoid the difficulty 

encountered (and mistakes made in assessing the nature of a 

complaint) by a complainant when faced with making a forum choice 

at the outset. 

• Some stakeholders raised concern over the number of complaints 

accepted into the process that should not be (i.e., frivolous, not 

discrimination) and supported having EEO complaints go through a 

similar process as unfair labor practice allegations.45 With unfair labor 

practice allegations, an investigation by an independent third party 

serves to eliminate matters that should not go forward before a fullscale hearing is afforded. 

Some stakeholders observed that under options in which an individual 

goes directly to a third party with allegations, the adversarial nature of the 

 

45Unfair labor practice allegations are investigated by the Federal Labor Relations 

Authority’s (FLRA) Office of General Counsel (OGC), which also settles and prosecutes 

unfair labor practice charges. At the conclusion of the investigation, FLRA’s OGC makes a 

decision as to whether to dismiss the charge or file a complaint (on the individual’s behalf) 

with an FLRA administrative law judge. 

Page 33 GAO-09-712 Equal Employment Opportunity
 

process could potentially increase. One stakeholder observed that such 

options could require mandatory ADR to minimize this potential effect. 

Concern was also raised by another stakeholder that some options may 

serve to preclude lower-graded employees from pursuing claims where the 

option does not provide for a cost-free investigation. 

Through the use of several initiatives introduced in fiscal year 2008, EEOC 

is seeking to help federal agencies achieve model EEO programs where 

they can make employment decisions that are free from discrimination 

and that remove barriers to free and open workplace competition. One 

such tool is EEOC’s EEO Program Compliance Assessment (EPCA), a type 

of scorecard that is divided into two sections. In the EEO program 

activities section, EEOC evaluated agencies on selected indicators under 

each model element of MD-715 using fiscal year 2006 data and reports. 

Among the indicators measured were timeliness of investigations, FADs, 

and submission of complaint files for hearings and appeals. EEOC also 

measured agencies’ use of ADR. EPCA does not evaluate agencies on the 

quality of their investigations, but according to EEOC officials, the 

Commission is currently examining how to incorporate agencies’ quality of 

investigations as a performance measure under EPCA. In the EEO 

program outcome indicators section, EPCA includes selected responses 

from OPM’s fiscal year 2006 Federal Human Capital Survey to five survey 

questions as “proxy outcome indicators” to gauge each agency’s progress 

in creating a fair and inclusive workplace. The outcome indicators section 

also includes workforce analyses based on race, national origin, gender, 

and targeted disabilities that show how a particular agency’s workforce is 

composed by major occupation and compare it to the civilian labor force; 

provides an odds ratio analysis on promotions in the senior grade levels; 

and shows agencies how they compare to the federal government as a 

whole on various climate and other issues. During our audit work, 

agencies’ EPCA results were available to the public on EEOC’s Web site; 

however, EEOC has since removed the results. According to a senior 

EEOC official, EEOC is evaluating the appropriate use of the program 

indicators in EPCA in an attempt to ensure that the indicators chosen are 

accurate measures of the performance of agency EEO programs. The 

official did not provide a time frame for this evaluation. 

Improving Equal 

Opportunity in the 

Federal Workforce 

In addition to EPCA, EEOC stated in its fiscal year 2008 performance and 

accountability report that a key strategy in its efforts to be more 

responsive to federal agencies was the continued development of its 

relationship management pilot. This initiative was first piloted in fiscal 

year 2004 and involves EEOC personnel partnering with EEO staff in 11 

Page 34 GAO-09-712 Equal Employment Opportunity
 

agencies in a consultative relationship to improve customer service and 

help them successfully implement the essential elements of MD-715’s 

model EEO program. In addition to these activities, EEOC staff provide 

trend analysis feedback to selected agencies on their MD-715 submissions, 

and EEOC is conducting on-site reviews of five agencies with high 

underrepresentation of racial minorities at the Senior Executive Service 

level and of another agency to investigate a spike in retaliation complaints. 

Finally, in June 2008, EEOC announced a proposal that brought together 

previous EEOC commissioners’ efforts.46 Among the changes contained in 

the notice, are the following: 

• A requirement that agency EEO programs comply with EEOC 

regulations,47 MDs (MD-110 and MD-715), and management bulletins 

and that EEOC will review agency programs for compliance.48

• Permission from EEOC for agencies to conduct pilot projects—usually 

for not more than 12 months—for processing complaints in ways other 

than those prescribed in EEOC regulations (Part 1614). 

• A requirement that an agency that has not completed an EEO 

investigation within the 180-day time limit notify the complainant in 

writing that the investigation is not complete and when it will be 

completed and that the complainant has the right to request a hearing 

or file a lawsuit.49

The proposals for EEOC to review compliance with its regulations, MDs, 

and other guidance and to provide additional notification to complainants 

have the potential for an immediate impact on the EEO complaint process. 

 

46EEOC announced its Notice of Proposed Rulemaking on Federal Sector Regulations at a 

June 2, 2008, commission meeting but has not yet published it. See notice of meeting at 73 

Fed. Reg. 30392 (May 27, 2008). In addition to the changes in regulations it is proposing, 

EEOC has tasked a work group with developing recommendations on ways to improve the 

hearings process. 

47Part 1614 of Title 29 of the Code of Federal Regulations. 

48With this provision, the commission stated that it intends to provide a mechanism for 

reviewing and seeking compliance from agencies. 

49As stated earlier, currently a complainant has the right to request a hearing or file a 

lawsuit when an investigation has not been completed within 180 days of the complaint 

being filed, but there is no requirement that the agency notifies the complainant when the 

time has elapsed. 

Page 35 GAO-09-712 Equal Employment Opportunity
 

By reviewing compliance, EEOC could address several of the factors that 

EEO practitioners indicated impede the timely processing of complaints 

and independence. For example, requiring agency compliance with 

regulations and MDs delineating the reporting lines of authority for EEO 

Directors and the roles of agency offices of general counsel in the EEO 

complaint process could help strengthen the independence of EEO 

professionals to fulfill their responsibilities. As we stated earlier, EEOC 

stated its belief that a requirement to notify the complainant in writing 

about complaints that have not been investigated within 180 days may 

provide an incentive for agencies to complete investigations in a timely 

manner. 

Pilot projects could provide helpful data with which EEOC could make 

decisions about future improvements to the federal sector EEO complaint 

process. For example, the Department of Defense (DOD) had the authority 

to operate pilot programs outside of the procedural requirements 

prescribed by EEOC to improve processes for the resolution of EEO 

complaints by civilian employees of DOD.50 DOD operated three such 

programs between 2005 and 2007, although only one of the three DOD 

pilot programs met the criteria of “operating outside of EEOC regulations.” 

The other two operated within the framework of EEOC regulations by 

increasing the use of ADR to informally settle disputes before they became 

formal complaints. Our prior work on the DOD pilot programs showed the 

importance of having a sound evaluation plan, including key features that 

are essential for assessing the performance of the pilot programs and 

making determinations regarding the wider applications of the pilot 

programs.51

Some key features of a sound evaluation plan include the following: 

• Well-defined, clear, and measurable objectives. 

• Measures that are directly linked to the program objectives. 

 

50Other than an early consultation with DOD, EEOC was not involved in the design or 

implementation of the DOD pilot programs. 

51GAO, Equal Employment Opportunity: DOD’s EEO Pilot Program Under Way, but 

Improvements Needed to DOD’s Evaluation Plan, GAO-06-538 (Washington, D.C.: May 5, 

2006), and Limitations in DOD’s Evaluation Plan for EEO Complaint Pilot Program 

Hinder Determination of Pilot Results, GAO-08-387R (Washington, D.C.: Feb. 22, 2008). 

Page 36 GAO-09-712 Equal Employment Opportunity
 

• Criteria for determining pilot program performance. 

• A way to isolate the effects of the pilot programs. 

• A data analysis plan for the evaluation design. 

• A detailed plan to ensure that data collection, entry, and storage are 

reliable and error free.52

In addition to the importance of having a strong evaluation program, our 

work on the DOD pilots also identified lessons learned that can be 

instrumental for EEOC and potential pilot program officials as they 

consider whether to institute pilot projects to address concerns that have 

been identified with the EEO complaint process. For example, it is 

important to (1) involve senior management and stakeholder groups in 

designing, implementing, and evaluating the pilot program to help with 

buy-in; (2) emphasize the importance of customer feedback; and 

(3) include mechanisms to solicit such feedback. 

As of May 2009, EEOC had not issued its notice of proposed rulemaking 

outlining such specific features as the number of pilot projects, how they 

will operate, or how they will be evaluated. The solutions that EEO 

practitioners and others have offered to improve the quality and timeliness 

of investigations may provide candidates for the pilot projects, allowing 

EEOC to make data-driven decisions about changes to the federal EEO 

complaint process. 

Equal opportunity in the federal workplace is key to enabling federal 

agencies to meet the complex needs of our nation. Agencies must make a 

firm commitment to the principles of equal opportunity and make those 

principles a fundamental part of agency culture so that all employees can 

compete on a fair and level playing field and have the opportunity to 

achieve their potential, without regard to race, color, religion, national 

origin, age, gender, or disability. Holding agencies accountable for 

adhering to EEOC regulations and guidance will help EEOC to ensure that 

the EEO complaint process is operating as intended. EEO practitioners 

and others have identified shortcomings in the operation of the federal 

EEO process at both the agencies and EEOC. Some of these shortcomings 

Conclusions 

 

52This plan should include forms for collecting baseline data (before the pilot program 

begins) and program data from the pilot as well as detailed time frames, roles and 

responsibilities, and report planning in the evaluation plan. 

Page 37 GAO-09-712 Equal Employment Opportunity
 

could potentially be addressed through additional guidance that EEOC has 

stated it intends to issue in such areas as the appropriate relationship 

between EEO offices and offices involved in defending the agencies 

against discrimination complaints as well as what constitutes a claim; it 

will be important for the commission to follow through with this guidance. 

Additionally, EEOC is considering allowing agencies to conduct pilot 

projects for processing complaints outside of EEOC regulations. If 

agencies were to participate in pilot projects, it would be important for 

them to have well-developed evaluation plans that include key evaluation 

features. Pilots that are undertaken without sound evaluation plans 

increase the likelihood of insufficient or unreliable data, limiting 

confidence in pilot project results. Without confidence in pilot project 

results, EEOC will be limited in its decision making regarding the pilot 

projects, and to the extent that proposed changes in the federal EEO 

complaint process require congressional action, Congress will be limited 

in its decision making about the pilot projects’ potential broader 

application. 

If pilot projects are approved by EEOC, we recommend that the Acting 

Chairman of EEOC take the following two actions: Recommendations for 

Executive Action • Direct pilot project officials to develop for each pilot project an 

evaluation plan that includes key features to improve the likelihood 

that pilot project evaluations will yield sound results, such as 

• well-defined, clear, and measurable objectives; 

measures that are directly linked to the program objectives; 

criteria for determining pilot program performance; 

• a way to isolate the effects of the pilot programs; 

• a data analysis plan for the evaluation design; and 

• a detailed plan to ensure that data collection, entry, and storage are 

reliable and error free. 

• Direct commission staff to review and approve pilot projects’ 

evaluation plans to increase the likelihood that evaluations will yield 

methodologically sound results, thereby supporting effective program 

and policy decisions. 

We provided a draft of this report to EEOC for review and comment. In a 

June 24, 2009, letter, EEOC’s Acting Chairman agreed with our 

recommendations and stated that EEOC plans on implementing them. The 

Acting Chairman further stated that EEOC is committed to improving the 

timeliness of complaint processing, enhancing the quality of the 

Agency Comments 

Page 38 GAO-09-712 Equal Employment Opportunity
 

investigative reports as well as the hearing and appellate decisions, and 

ensuring greater accountability by all parties in the federal sector 

complaint process. EEOC’s letter is reprinted in appendix III. 

We are sending copies of this report to the Attorney General; the Acting 

Chairman, Equal Employment Opportunity Commission; and interested 

congressional committees and subcommittees. The report also is available 

at no charge on the GAO Web site at http://www.gao.gov. 

Please contact me at (202) 512-6806 or stalcupg@gao.gov if you or your 

staffs have any questions about this report. Contact points for our Offices 

of Congressional Relations and Public Affairs may be found on the last 

page of this report. GAO staff who made major contributions to this report 

are listed in appendix IV. 

George H. Stalcup 

Director, Strategic Issues 

Page 39 GAO-09-712 Equal Employment Opportunity
 

List of Congressional Committees 

The Honorable Joseph I. Lieberman 

Chairman 

The Honorable Susan M. Collins 

Ranking Member 

Committee on Homeland Security and Governmental Affairs 

United States Senate 

The Honorable Daniel K. Akaka 

Chairman 

The Honorable George V. Voinovich 

Ranking Member 

Subcommittee on Oversight of Government Management, 

 the Federal Workforce, and the District of Columbia 

Committee on Homeland Security and Governmental Affairs 

United States Senate 

The Honorable Edolphus Towns 

Chairman 

The Honorable Darrell Issa 

Ranking Member 

Committee on Oversight and Government Reform 

House of Representatives 

The Honorable John Conyers Jr. 

Chairman 

The Honorable Lamar Smith 

Ranking Member 

Committee on the Judiciary 

House of Representatives 

The Honorable Stephen F. Lynch 

Chairman 

The Honorable Jason Chaffetz 

Ranking Member 

Subcommittee on Federal Workforce, Postal Service, 

 and the District of Columbia 

Committee on Oversight and Government Reform 

House of Representatives 

Page 40 GAO-09-712 Equal Employment Opportunity
Appendix I: 

Methodology 

Objectives, Scope, and 

Page 41 GAO-09-712 

Appendix I: Objectives, Scope, and 

Methodology 

As agreed with interested congressional committees, this report provided 

the results of our analysis of (1) factors that practitioners identified that 

they believe impede the prompt, fair, and impartial processing of federal 

equal employment opportunity (EEO) complaints and (2) actions that 

practitioners and other stakeholders think could be taken to address those 

factors. We also included information on what the Equal Employment 

Opportunity Commission (EEOC) is doing to improve equal opportunity in 

the federal workforce. 

For the purposes of this review, we surveyed individuals whose work roles 

and responsibilities put them in regular contact with the federal EEO 

complaint process, thereby ensuring their familiarity with and knowledge 

about the process. Based on prior GAO work on the EEO process, we 

identified seven categories of individuals familiar with the federal EEO 

complaint process. We termed these individuals “EEO practitioners” and 

collected their informed views concerning the EEO complaint process. We 

derived our seven categories of practitioners from three sources: 

individual agencies, EEOC, and the plaintiffs’ attorney community. Agency 

practitioners we surveyed included the EEO directors responsible for 

administering agency EEO programs, EEO counselors responsible for 

reviewing the complainants initial allegations and advising them on their 

roles and responsibilities in the EEO process, EEO investigators 

responsible for investigating EEO complaints, and legal counsels 

responsible for advising and defending agencies against EEO complaints. 

EEOC practitioners included the EEOC administrative judges (AJ) 

responsible for adjudicating complaints, conducting hearings, and issuing 

decisions on EEO complaints, and EEOC appeals attorneys responsible 

for processing appeals of decisions. The plaintiffs’ attorneys represent 

individual employees who filed EEO complaint cases. We obtained e-mail 

addresses, physical addresses, and telephone numbers for all EEO 

practitioners in order to contact them. 

Objectives 1 and 2 

Agency Selection To attain a wide representation of agencies, we selected agency-level EEO 

practitioners from 17 agencies based on agency size, complaint activity, 

and investigation source (in-house versus contractor) as of fiscal year 

2005.1

 In an effort to obtain a sufficiently representative and diverse group 

 

1

We used fiscal year 2005 data because those were the most recently available data from 

EEOC at the time we began our work in May 2006. 

 Equal Employment Opportunity 
Appendix I: Objectives, Scope, and 

Methodology 

of large, medium, and small agencies from which to begin our selection 

process, we focused on agencies that had reported at least 50 complaints 

filed in fiscal year 2005, the number of employees at agencies, and the 

mechanism the agencies used to investigate complaints—primarily agency 

employees, contract investigators, or a mix of in-house and contract 

investigators in fiscal year 2005. The 17 agencies that we selected on the 

basis of the number of complaints filed and the mechanism for EEO 

investigations were the Departments of Agriculture, Commerce, Defense, 

Education, Energy, Health and Human Services, Homeland Security, the 

Interior, Justice, Transportation, the Treasury, State, and Veterans Affairs; 

the Environmental Protection Agency; the General Services 

Administration; the Office of Personnel Management; and the U.S. Postal 

Service. EEO complaints filed at the selected 17 agencies in the aggregate 

represented 91 percent of EEO complaints filed governmentwide in fiscal 

year 2005. 

We decided against including the Department of Justice (Justice) after 

agency officials said that their practitioners’ survey responses first would 

have to undergo vetting within the agency. Under those conditions, we 

could not allow Justice practitioners to participate in the survey. We so 

advised Justice representatives during a telephone conference, during 

which we also proposed interviewing Justice officials later in the 

engagement about possible changes to the EEO complaint process. Justice 

representatives agreed to participate under those conditions. The decision 

not to include Justice left us with 16 agencies that in the aggregate 

represented 87.5 percent of EEO complaints filed governmentwide in 

fiscal year 2005. 

Finally, for a total of 17 agencies, we included EEOC because of the roles 

that its AJs play in adjudicating hearings of EEO complaints and its 

appeals attorneys play in adjudicating appeals of decisions on those 

complaints. 

EEO Practitioner Selection To recruit EEO practitioners from the 16 agencies, we contacted EEO 

directors at these agencies by telephone and e-mail, informed them about 

the nature of our review, requested their participation in the survey, and 

asked them to nominate EEO counselors, investigators, and agency 

counsel. We contacted EEOC officials to recruit EEOC AJs and appeals 

attorneys. We also contacted plaintiffs’ attorneys from the private sector. 

The selected practitioners represent different parts of the complaint 

process, and some of the practitioners may only be familiar with their part 

of the process. 

Page 42 GAO-09-712 Equal Employment Opportunity
Appendix I: Objectives, Scope, and 

Methodology 

We recruited an equal number of individuals from each category of EEO 

practitioners to attain a wide representation of agencies and reduce 

possible bias in the final results. To achieve a more independent 

distribution of agency practitioners, we selected our final list of 

practitioners from 16 agencies (not including EEOC) in an effort to reduce 

the risk of collaborative responses caused by horizontal integration. We 

recruited no more than 3 practitioners for each of the four categories of 

agency practitioners (i.e., directors, counselors, investigators, and agency 

counsels) to lessen the likelihood that any of the agencies would have all 

categories of practitioners and ensure a broader perspective on the issues. 

In all, we selected 36 practitioners, 9 from each group of agency 

practitioners. We did not select a member of every practitioner group from 

every agency. 

In addition to the agency practitioners, we also sought the perspectives of 

practitioners from EEOC, which administers and provides guidance and 

oversees the federal EEO complaint process. We asked EEOC supervisors 

and nonsupervisors to nominate EEOC AJs and appeals attorneys to 

participate in the survey. To recruit AJs, we also considered 

recommendations from EEOC management and from an organization 

representing EEOC AJs, contacted nominees and asked them to 

participate in the survey and to recommend other AJs for participation, 

and then contacted the nominees to request their involvement. We 

selected nine EEOC appeals attorneys and nine EEOC AJs. 

Finally, we selected nine plaintiffs’ attorneys after considering relevant 

information from other EEO practitioners and people in the EEO 

community. 

To address our objectives, we primarily used two Web-based surveys to 

systematically collect and distill knowledge from the EEO practitioners we 

had selected.2

Phase I Survey Our first Web-based survey consisted of open-ended questions that were 

designed to capture the practitioners’ narrative responses. Specifically, we 

 

2

By using a Web-based process instead of a panel discussion, we were able to overcome the 

potential biases that can occur as experts share their opinions in group settings where 

factors such as especially vocal individuals and pressures to conform to the group may 

skew results. By creating a Web-based virtual panel, we were able to include more 

individuals from these groups than would have been possible with a live panel. 

Page 43 GAO-09-712 Equal Employment Opportunity
Appendix I: Objectives, Scope, and 

Methodology 

asked practitioners three questions: (1) Based on your experience as an 

EEO practitioner, what are the most important factors you have observed 

that materially impede the prompt, fair, and impartial processing of 

complaints at your agency, or at EEOC, and how have those factors 

impeded complaint processing? (2) What specific changes could be made 

to address the factors you listed above, in order to promote the prompt, 

fair, and impartial processing of federal EEO complaints? (3) What 

changes have been made to the EEO complaint process at your agency? 

What effects did these changes have on the prompt, fair, and impartial 

processing of EEO complaints at your agency?3

Before launching each survey, we conducted a series of pretests with 

internal and external EEO practitioners, including some actual survey 

respondents. The goals of the pretests were to check that (1) the questions 

were clear and unambiguous and (2) the terminology was used correctly. 

To conduct pretests, we selected representatives from several practitioner 

categories, provided them with survey drafts for their review, and 

interviewed them either in person or by teleconference to obtain their 

opinions about the language, format, and tone of questions in the survey. 

Based on the reactions of practitioners, we changed the survey content 

and format during pretesting as necessary. We also conducted usability 

tests that entailed checking each practitioner’s password, user name, and 

link to ensure their operability before we launched the Web survey. 

To activate the survey, we posted it to the Internet. We notified the 63 EEO 

practitioners of the availability of the questionnaire with an e-mail 

message that contained a unique user name and password that allowed 

each respondent to log on and fill out a questionnaire while preventing 

respondents from gaining access to the surveys of others. Using their 

access information, practitioners could access the survey on the Internet 

at any time and could complete it at their convenience. If practitioners did 

not respond to the confidential link we provided, we accepted official 

submissions for responses in another format (e.g., e-mail). Access to the 

Phase I survey formally began on April 9, 2007, after which practitioners 

had approximately 8 weeks from April 2007 through May 2007 to complete 

the survey. While the survey was ongoing, we wrote follow-up e-mails and 

made telephone calls to practitioners who did not initially respond to the 

survey to ensure that we made every effort to reach them. 

 

3

We did not evaluate the effectiveness of any of the initiatives practitioners identified. 

Page 44 GAO-09-712 Equal Employment Opportunity
Appendix I: Objectives, Scope, and 

Methodology 

Of the 63 practitioners to whom we made the Phase I survey available, 1 

practitioner informed us that she did not work in one of our practitioner 

categories. As she was the only respondent from her agency, we sent the 

survey to another EEO practitioner at that agency. When we did not 

receive a response from another practitioner at another agency, we then 

sent the survey to an official from her agency, because that official’s office 

is in charge of the discrimination complaint counseling and investigation 

processes and alternative dispute resolution. Thus, we selected 65 

practitioners to participate in the Phase I Web-based survey. By June 2007, 

of the 65, 62, or about 95 percent of the EEO practitioners, had completed 

the Phase I survey. Responses to the survey express only the views and 

attitudes of the practitioners. 

Once the Phase I survey was complete, we conducted a content analysis of 

practitioners’ open-ended narrative responses to that survey. We 

developed a coding system that was based on the type of practitioner, the 

individual respondent, sequential numbers to identify the response, and 

the type (solution or factor) of response. We assigned individual codes to 

each sentence or paragraph provided by each practitioner. Based on our 

content analysis of Phase I responses, we developed a list of eight broad 

categories of factors—accountability, knowledge and skills, authority, 

independence, commitment, resources, communication, and laws and 

guidance—into which we grouped the responses. We also included 

“Other” and “Not applicable” categories where we placed that very small 

number of responses that did not fit under the eight factors.4

 Some Phase I 

survey responses may have addressed multiple issues and so may have 

been classified into more than one of these factors. 

We did not assess the validity of the practitioners’ views of impediments or 

solutions to the EEO complaint process or evaluate the effectiveness of 

initiatives that agency EEO practitioners said their agencies had 

implemented to improve their complaint processes. We report the views of 

practitioners who are knowledgeable of the federal EEO complaint 

process, but these views do not represent the official views of the 17 

agencies. In addition, the practitioners’ views cannot be generalized to all 

federal agencies and EEO practitioners for some or all of the factors 

identified. 

 

4

“Other” included responses that did not fit into the eight factors. “Not applicable” 

responses fell mainly into two broad areas that were outside of the scope of our review: 

class action complaints and “mixed cases,” which allege discrimination related to actions 

that can be appealed to the Merit Systems Protection Board. 

Page 45 GAO-09-712 Equal Employment Opportunity
Appendix I: Objectives, Scope, and 

Methodology 

Phase II Survey After categorizing all responses according to the eight broad factors, we 

used the results as a basis for developing the closed-ended questions that 

made up the Phase II survey and asked practitioners to rank on a scale of 1 

through 8 the solutions they considered to be most important for 

improving the current federal EEO complaint process. 

As we had done for the Phase I survey, we conducted pretests of the Phase 

II survey with practitioners to ensure that our questions were clear and 

unambiguous and that the terminology was being used correctly. For 

pretest subjects, we selected representatives from each of the practitioner 

categories and included some actual survey respondents. We provided 

them with survey drafts for their review and interviewed them in person or 

by telephone. We modified the draft survey to address feedback we 

received from pretesters. 

The Phase II survey formally began on January 10, 2008. We sent the 

survey to the 62 EEO practitioners who responded to the Phase I survey. 

Survey respondents took approximately 8 weeks, from January 2008 

through February 2008, to complete the second phase of the survey. We 

wrote follow-up e-mails and made numerous telephone calls to contact 

practitioners who did not initially respond to the survey to ensure that we 

obtained responses from as many practitioners as possible. In all, 56, or 

about 90 percent, of the 62 practitioners completed the Phase II survey, 

which refines the results of the Phase I survey by asking respondents to 

provide their views as to where directed improvements in the EEO 

complaint process for each of the eight broad factors from the Phase I 

survey could have the greatest effect. The Phase II survey asked 

respondents to rank each of the eight factors identified in the Phase I 

survey from highest to lowest in terms of importance for improving the 

federal EEO complaint process. Once respondents completed the Phase II 

survey, we computed overall rankings of the factors according to the order 

of frequency in which respondents ranked them as most, second most, or 

third most important. The views expressed by the survey respondents do 

not represent the views of GAO. 

Discussions with 

Stakeholders 

We also gathered information to address our second objective by 

interviewing representatives from a variety of stakeholder organizations in 

the federal EEO complaint process, including federal employee unions, 

federal executive and managers associations, agency attorneys’ 

associations, and federal employee organizations, to obtain their views 

regarding possible changes that could be made to the federal EEO 

complaint process and the advantages and disadvantages of implementing 

Page 46 GAO-09-712 Equal Employment Opportunity
Appendix I: Objectives, Scope, and 

Methodology 

such changes. We selected these stakeholder organizations based on a 

literature search, recommendations from EEOC, and our professional 

judgment in an effort to compile a diverse list of organizations with 

involvement in EEO activities or that represented specific groups 

protected by EEO laws. The stakeholder organizations we contacted for 

this review do not represent all of the potential stakeholder organizations 

from specific groups protected by EEO laws. 

Using a preliminary list we developed, we obtained the names, street 

addresses, and e-mail addresses of officials from these organizations and 

conducted interviews with representatives from these organizations in 

their headquarters offices and in facilitated group meetings at GAO 

headquarters. Before conducting the stakeholder interviews, we e-mailed 

representatives a document that contained preliminary information from 

our Phase I survey and descriptions of several possible options for 

reassigning responsibilities for operating federal EEO investigations, 

counseling, hearings, and appeals to EEOC, another agency, or a 

hypothetical entity. We provided this information to enable stakeholders 

to review the document before interviews where it would serve as a point 

of discussion. During these interviews, we asked stakeholder organization 

representatives whether they thought our eight broad factors adequately 

captured the complex issues in the federal EEO complaint process and to 

identify the advantages and disadvantages of implementing the structural 

options that we had described for changing the EEO complaint process.5

We analyzed the views of these stakeholder organization representatives 

by reviewing their observations concerning our eight broad factors as well 

as their observations on the possible options for making changes to the 

EEO complaint process. 

 

5

We interviewed representatives from organizations with government oversight 

responsibility, including the Merit Systems Protection Board, the Office of Personnel 

Management, and the National Academy of Public Administration; EEO practitioners, 

including officials from EEOC; attorneys from Justice who represent the government in 

EEO litigation and U.S. attorneys presiding over such litigation; attorneys from the 

American Bar Association; representatives from both the American Federation of 

Government Employees and the National Treasury Employees Union; officials from the 

Federal Managers Association and the Senior Executives Association that represent 

current and former members of the Senior Executive Service and equivalent federal pay 

systems; Federal Employment Lawyers Group; and others from organizations involved with 

the complaint process through their representation of employees, including Blacks in 

Government, Federally Employed Women, the National Council on Disability, the National 

Association of Hispanic Federal Executives, the Association for Persons with Disabilities in 

Agriculture, the Asian American Government Executives Network, the Council on Federal 

EEO and Civil Rights Executives, and the Deaf and Hard of Hearing in Government. 

Page 47 GAO-09-712 Equal Employment Opportunity
Appendix I: Objectives, Scope, and 

Methodology 

Actions Taken by EEOC to 

Improve Equal 

Opportunity in the Federal 

Workforce 

To identify actions taken by EEOC to improve the federal EEO complaint 

process, we reviewed EEOC documents and interviewed commission 

officials. We did not evaluate the effectiveness of actions EEOC reported 

taking. 

We conducted this performance audit from May 2006 through August 2009 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. 

Page 48 GAO-09-712 Equal Employment Opportunity
Appendix II: EEO Laws Applicable to Federal 

Employees 

Page 49 GAO-09-712 

Appendix II: EEO Laws Applicable to Federal 

Employees 

Title VII of the Civil Rights Act of 1964, as amended, makes it illegal for 

employers, including federal agencies, to discriminate against their 

employees or job applicants on the basis of race, color, religion, sex, or 

national origin.1

 The Equal Pay Act of 1963 protects men and women who 

perform substantially equal work in the same establishment from sexbased wage discrimination.2

 The Age Discrimination in Employment Act of 

1967, as amended, prohibits employment discrimination against 

individuals who are 40 years of age or older.3

 Sections 501 and 505 of the 

Rehabilitation Act of 1973, as amended, prohibit discrimination against 

qualified individuals with disabilities who work or apply to work in the 

federal government.4

 Federal agencies are required to provide reasonable 

accommodation to qualified employees or applicants for employment with 

disabilities, except when such accommodation would cause an undue 

hardship. In addition, a person who files a complaint or participates in an 

investigation of an EEO complaint or who opposes an employment 

practice made illegal under any of the antidiscrimination statutes is 

protected from retaliation. The EEOC is responsible for enforcing all of 

these laws. 

 

1

42 U.S.C. §§ 2000e et seq. 

2

29 U.S.C. § 206(d). 

3

29 U.S.C. §§ 621 et seq. 

4

29 U.S.C. §§ 791 and 794a. 

 Equal Employment Opportunity 
Appendix III: Comments from the U.S. Equal Appendix III: Comments from the U.S. Equal Employment Opportunity Commission 

Employment Opportunity Commission 

Page 50 GAO-09-712 Equal Employment Opportunity
Appendix III: Comments from the U.S. Equal 

Employment Opportunity Commission 

Page 51 GAO-09-712 Equal Employment Opportunity
Appendix IV: 

A

GAO Contact and Staff 

cknowledgments 

Page 52 GAO-09-712 

Appendix IV: GAO Contact and Staff 

Acknowledgments 

George Stalcup, (202) 512-6806 or stalcupg@gao.gov 

In addition to the contact named above, Anthony Lofaro, Belva Martin, and 

Kiki Theodoropoulos, Assistant Directors; Gerard Burke; Jeff Dawson; 

Brandon Haller; Karin Fangman; Jeff Niblack; and Greg Wilmoth made 

major contributions to this report. 

 Equal Employment Opportunity 

GAO Contact 

Acknowledgments 

(450241) 
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