Equal Employment Opportunity: Pilot Projects Could Help Test Solutions to Long-standing Concerns with the EEO Complaint Process
Published: 2009-08-12T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: 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.  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.  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 long- standing concern of EEOC, other federal agencies, and Congress. Since  the mid-1990s, we have reported that the EEO complaint process was  inefficient, expensive, and time-consuming. 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. In 2001 testimony during deliberation of the Notification and  Federal Employee Antidiscrimination and Retaliation (No FEAR) Act, 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. 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   policies and decisions without fear of retaliation and where managers can  respond to such concerns openly and constructively.
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.
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.
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.
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. 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. 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  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.
subsections: section_title: Background
paragraphs: 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.
subsections: section_title: Informal Stage, or Precomplaint Counseling
paragraphs: 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, 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.
section_title: Formal Stage
paragraphs: 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  30 days to appeal the dismissal to EEOC. 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. 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.  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. 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. 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.
A complainant may file a civil action in federal district court at various  points during and after the administrative process. 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.
section_title: EEOC Management Directives Related to the Complaint Process
paragraphs: 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,  including, among other things, the authority of the EEO director and the  director’s reporting relationship to the agency head, mandatory training  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 gencies  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 e a  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 r information necessary to analyze complaint activity and  identify trends.
section_title: Timeliness o Processing
paragraphs: 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  thin  that by 2012 70 percent of federal sector appeals are to be resolved wi180 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. 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   that  processing days for EEOC hearings decisions, which on average have  exceeded requirements.
section_title: EEO Practitioners Identified Factors That Impede the Prompt, Fair, and Impartial Processing of EEO Complaints
paragraphs: 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. 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.
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  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. 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. 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 in- house 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.
subsections: section_title: Lack of Accountability
paragraphs: 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.
section_title: Insufficient Resources for Agency EEO Offices and EEOC
paragraphs: 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.
section_title: Lack of Independence
paragraphs: 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  separated in the processing of EEO complaints because often allegations  about personnel actions, including promotions, reassignments, and h involve the human resources office as the responsible management  official.
section_title: Insufficien and Skills
paragraphs: 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 aw by  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 of the work they perform is not systematically monitored or addressed.
section_title: Insufficient Authority
paragraphs: 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  egal  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 federal witnesses (e.g., witnesses  are reluctant to testify, including non who are no longer with the agency).
section_title: Lack of Clarity of EEOC Regulations and Guida and Consis tent EEOC Decisions
paragraphs: Some EEO practitioners indicated that more guidance is needed from  EEOC on regulations and MDs and that EEOC decisions need to follow  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 AJs  and other parties to know what to do in certain situations. Another  practitioner, an EEO investigator, stated that EEOC OFO appellate  decisions can be inconsistent and unclear, making procedural decisions  (e.g., dismissals) a “gamble.”
section_title: Lack of Communication
paragraphs: 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.
section_title: Lack of Commitment
paragraphs: 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.
section_title: EEO Practitioners and Other Stakeholders Proposed Solutions That They Believe Address the Identified Factors
paragraphs: 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.
subsections: section_title: Strengthening Accountability
paragraphs: 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  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. 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  cooperate if the agency has met its responsibilities. 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,  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.
section_title: Providing Sufficient Resources at the Agency and at EEOC
paragraphs: 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  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.
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,  which could contribute to delays in meeting time frames. 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.
section_title: Strengthening Independence
paragraphs: 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. 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  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.
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.  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. 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.
section_title: Enhancing Knowledge and Skills
paragraphs: 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  help reduce the time it takes to conduct investigations. More than three- quarters 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. 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  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.
section_title: Increasing Authority of EEO Directors and AJs
paragraphs: 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, 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  has delegated to its regional directors/chief administrative judges and AJs  the authority to subpoena witnesses. 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. 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, 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. 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. In cases that are dismissed,  complainants could still appeal such decisions to EEOC.
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. 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. 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. 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. EEOC’s OFO can  also sanction agencies at the appellate level. 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.
section_title: Increasing the Clarity of EEOC Regulations and Guidance and Consistency of EEOC Decisions
paragraphs: 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  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.
section_title: Improving Communication throughout the Complaint Process
paragraphs: 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.
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  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.
section_title: Reinforcing Commitment at All Levels in the EEO Complaint Process
paragraphs: 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. 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  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  statements, an increase over the 50 percent of the 158 agencies and  subcomponents that submitted MD-715 reports in fiscal year 2005.
section_title: Raising Other Options for Changing the EEO Complaint Process
paragraphs: 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. With unfair labor  practice allegations, an investigation by an independent third party  serves to eliminate matters that should not go forward before a full- scale 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  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.
section_title: Improving Equal Opportunity in the Federal Workforce
paragraphs: 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.
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  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. Among the changes contained in  the notice, are the following:    A requirement that agency EEO programs comply with EEOC  regulations, MDs (MD-110 and MD-715), and management bulletins  and that EEOC will review agency programs for compliance.
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.
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.
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. 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.
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.
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.
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.
section_title: Conclusions
paragraphs: 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  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.
section_title: Recommendations for Executive Action
paragraphs: If pilot projects are approved by EEOC, we recommend that the Acting  Chairman of EEOC take the following two actions:    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.
section_title: Agency Comments
paragraphs: 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  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.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: 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.
subsections: section_title: Objectives 1 and 2
paragraphs: 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.
subsections: section_title: Agency Selection
paragraphs: 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. In an effort to obtain a sufficiently representative and diverse group  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.
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.
section_title: Phase I Survey
paragraphs: Our first Web-based survey consisted of open-ended questions that were  designed to capture the practitioners’ narrative responses. Specifically, we  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?
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.
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. 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.
section_title: Phase II Survey
paragraphs: 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.
section_title: Discussions with Stakeholders
paragraphs: 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  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.  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.
section_title: Actions Taken by EEOC to Improve Equal Opportunity in the Federal Workforce
paragraphs: 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.
section_title: Appendix II: EEO Laws Applicable to Federal Employees
paragraphs: 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. The Equal Pay Act of 1963 protects men and women who  perform substantially equal work in the same establishment from sex- based wage discrimination. The Age Discrimination in Employment Act of  1967, as amended, prohibits employment discrimination against  individuals who are 40 years of age or older. 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. 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.
section_title: Appendix III: Comments from the U.S. Equal Employment Opportunity Commission
section_title: Appendix IV: GAO Contact and Staff Acknowledgments
subsections: section_title: Acknowledgments
paragraphs: 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.