Environmental Protection Agency: Continued Improvement Needed in Assessing Equal Employment Opportunity
Published: 2003-06-26T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Minority employees at the EPA reported for a number of years that the agency had discriminated against them based on their race and retaliated against them for filing complaints. These issues were aired at hearings held by the House Committee on Science at which EPA said it would take actions to ensure a fair and discrimination free workplace. GAO was asked to review (1) the accuracy of EPA's equal employment opportunity (EEO) data, (2) various issues about the processes used to resolve discrimination complaints, and (3) the disciplinary actions taken for managers who discriminate.
section_title: What GAO Found
paragraphs: EPA had difficulty providing accurate EEO data because of a data system that the agency believes was unreliable and was further compromised by data entry problems. When GAO identified problems with the information EPA provided, the agency manually reconstructed data for fiscal years 1995 through 2002. The reconstructed data indicate that during this period 548 EPA employees filed 679 discrimination complaints, and the agency closed 588 complaints. Complaints were closed with 125 dismissals, 48 withdrawals, 178 settlements, 5 remands, and 222 agency decisions not supporting the claimant. GAO cannot attest to the accuracy of these numbers but believes they are indicative of the situation at EPA. EPA recently procured new software to facilitate accurate tracking and reporting of EEO information and believes the software will rectify data problems. EPA has never had official standard operating procedures for complaint processing, which are required by regulation. Rather, EPA said that complaints were processed under general guidance provided by the Equal Employment Opportunity Commission (EEOC) until draft procedures, prepared in July 2001, were put into use. EPA has taken a long time to process discrimination complaints with cases averaging 650 days from filing to closing over fiscal years 1995-2002. A major contributing factor was that investigations, which are supposed to be done in 180 days, averaged a total of 465 days. The firms used by EPA failed to conduct thorough investigations and their reports did not provide complete or factual accounts of the incidents leading to the complaints. As a result, investigations often had to be redone, adding to the amount of time needed to complete them. Over the last year, EPA has discontinued the use of these firms and contracted with new ones that it believes are doing a much better job. EPA has also increased its own staffing for EEO matters to try to reduce processing times. EPA does not have a specific process for determining whether managers involved in discrimination complaints did in fact discriminate and if so whether managers should be disciplined. EPA officials told us that they have relied on training to rectify and prevent discriminatory conduct. Other agencies have formal processes to evaluate each case in which discrimination is found or a complaint is settled to determine whether discipline is warranted. EPA will be required to collect and report the number of agency employees disciplined for discrimination or harassment under the provisions of the Notification and Federal Employee Anti- Discrimination and Retaliation Act, effective in October 2003. A process like those in place at other agencies should also help EPA meet this requirement.

section_title: Letter
paragraphs: Four federal statutes-Title VII of the Civil Rights Act of 1964, as amended;  the Equal Pay Act of 1963; the Rehabilitation Act of 1973; and the Age  Discrimination in Employment Act of 1967-make it unlawful for a federal  employer to discriminate against an employee on the basis of race, color,  religion, sex, national origin, disability, or age.  For a number of years, some  Environmental Protection Agency (EPA) employees reported that, based  on race, EPA officials treated them differently from other employees in  terms of promotion, retention, and other employment-related decisions and  retaliated against employees for filing complaints.  In addition, EPA has  faced charges that its Office of Civil Rights (OCR) has not conducted  proper and timely investigations of discrimination complaints, specifically  not meeting the 180-day time frame for completing complaint  investigations as required by regulation.  Moreover, the agency allegedly  did not take disciplinary action against managers found to have  participated in discriminatory conduct.
These issues were the subject of hearings by the House Committee on  Science in the fall of 2000.  EPA officials said at the hearing that they would  take a number of actions to improve the equal opportunity environment,  including providing sensitivity training to managers.  EPA also said it would  improve its processing of discrimination complaints and improve its  system for tracking complaints.
In light of the issues raised at the hearing, you asked us to review (1) the  accuracy of EPA’s equal employment opportunity data on the number of  complaints and complainants since 1990 by type of complaint, settlement  method, outcome, and average processing time, (2) the processes to  resolve discrimination complaints, (3) the staffing levels assigned for  complaint resolution, (4) the components of the new plan devised to speed  complaint adjudication, and (5) the disciplinary actions the agency takes  against managers involved in discriminatory conduct.
We reviewed equal employment opportunity legislation and regulations  providing guidance to federal agencies and EPA’s processes developed to  implement these programs.  Although you asked for data going back to  1990, we are unable to provide these data because the agency expressed no  confidence in any data prior to 1995.   EPA provided data for the fiscal  years 1995-2002 period but due to an unreliable data system, we could not  independently verify the data provided.   The EPA information covered the  number of discrimination complaints and complainants; complaints closed,  including those closed through settlement; and average processing times.   We analyzed the numbers, obtained internal supporting documentation,  and reviewed forms used to comply with Equal Employment Opportunity  Commission (EEOC) reporting requirements.   We interviewed EPA  officials and reviewed documentation, including policies, statistics, and the  development of the plan establishing a course of action to alleviate past  problems with discrimination case backlogs.   We also reviewed EPA’s  record of taking disciplinary actions against managers found to have  participated in discriminatory conduct.   Our work was done from February  2002 through April 2003 in accordance with generally accepted government  auditing standards.
subsections: section_title: Background
paragraphs: EPA was established in 1970 to protect human health and safeguard the  natural environment.   EPA is staffed with large numbers of technically  trained personnel; more than half of its employees are engineers, scientists,  and environmental protection specialists.   Today, it employs 18,000 people.
EPA is headquartered in Washington, D.C., and has 10 regional offices and  laboratories across the country.  EPA’s OCR, a staff office in the Office of  the Administrator, is responsible for managing the agency’s discrimination  complaints program.  This program is intended to ensure that all EPA  employees and applicants for employment are afforded equal employment  and advancement opportunities free of discrimination.  Moreover, OCR is  responsible for the timely processing and resolution of discrimination  complaints.  Specifically, discrimination complaints are processed by  OCR’s Compliance and Internal Resolution Team.
Over the years, allegations and complaints have been made that EPA  tolerates discrimination, retaliates against whistleblowers, and fails to take  corrective action on these matters.  The agency’s policies and practices  were further questioned when an employee won a high profile court case in  2000.   EPA’s EEO practices have also attracted congressional interest in  general and about untimely complaint processing in particular.  Hearings  before the House Committee on Science in October 2000 highlighted  alleged discriminatory conduct.
EPA, like other federal agencies, is required to comply with the nation’s  civil rights laws.  Title VII of the Civil Rights Act of 1964, as amended,  makes it illegal for employers to discriminate against their employees or  job applicants on the basis of race, color, religion, sex, or national origin  (42 U.S.C. 2000e et.seq).  The Equal Pay Act of 1963 protects men and  women who perform substantially equal work in the same establishment  from sex-based wage discrimination (29 U.S.C.  206(b)).  The Age  Discrimination in Employment Act of 1967, as amended, prohibits  employment discrimination against individuals who are 40 years of age and  older (29 U.S.C. 621 et seq.).   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 (29  U.S.C.  791 and 794a).  Federal agencies are required to make reasonable  accommodations to qualified employees or applicants with disabilities  except when such accommodation would cause an undue hardship.   EEOC  is responsible for enforcing all of these laws.  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  statutes enforced by EEOC is protected from retaliation or reprisal.
EPA’s EEO program, like those in other agencies, is subject to several  regulations.  EPA is responsible for developing and implementing its own  equal employment program, including establishing or making available  alternative dispute resolution programs and adopting complaint processing  procedures as required by 29 C.F.R. Part 1614.  EEOC Management  Directive 110 (Federal Complaints Processing Manual) provides general  guidance on how agencies should process employment discrimination  complaints.  Agencies are also required to provide EEO discrimination  complaint data to EEOC (29 C.F.R.1614.602.). EEOC compiles these data  and reports them to Congress each year in the EEOC Annual Report on the  Federal Workforce.
section_title: System for Tracking EEO Data Was Unreliable, but EPA Is Taking Steps to Improve
paragraphs: Information contained in EPA’s discrimination complaint data system was  unreliable because of data entry problems.   EPA officials also maintain  that the computer software, which was obtained from a now defunct  supplier, was flawed and not able to report data accurately.   Reliable  discrimination complaint data are necessary for EPA’s OCR to track  complaints and look for trends that might indicate the need for specific  actions and to respond to EEOC reporting requirements.  EPA recently  implemented a new EEO data system and is taking steps to train staff  members and hold them accountable for maintaining the data system.
subsections: section_title: EEO Data Tracking System Was Unreliable
paragraphs: Officials attributed data system weaknesses in part to a now defunct data  management company whose data system was used to track and process  discrimination complaint information.  Officials said the system was flawed  and was further compromised because EPA’s EEO specialists did not  always enter, update, or maintain discrimination complaint data.  As a  result, EPA had difficulty providing accurate EEO information.   Moreover,  EPA had trouble discerning if there are trends in workplace problems that  lead to EEO complaints; this in turn has inhibited understanding sources of  conflict and planning corrective actions.
EEOC regulations point out that agencies should make every effort to  ensure accurate record keeping and reporting of EEO data.  Data fosters  transparency, which provides an incentive to improve performance and  enhance the image of the agency in the eyes of both its employees and the  public.  We initially requested discrimination complaint data for a 10-year  period (1991-2000).  However, OCR officials said they had no confidence in  discrimination complaint data prior to fiscal year 1995 because the data are  unreliable and source documents were not available to permit its  reconstruction.
OCR provided discrimination complaint data for fiscal years 1995 through  2002; however, in reviewing these data, we found that the information was  incorrect.  These data understated the actual number of discrimination  complaints on hand, the number of new discrimination complaints filed,  the number of complaints closed, and the year ending numbers.   Also the  data provided to us differed from the discrimination complaint data  reported to EEOC.   For example, the number of discrimination complaints  on hand at the end of fiscal year 2000 was reported to us as 176, but EPA  reported to EEOC that the number was 264.  The number of new  discrimination complaints filed in 2000 was reported to us as 79, but the  number reported to EEOC was 75.
After we pointed out some problems with the data, OCR manually reviewed  source documents and revised these numbers.  We did not verify the  accuracy of the revised numbers because doing so would have required  considerable effort to reconstruct all the data.  To determine if the numbers  provided for complaints on hand, new, closed, and ending were  supportable, we reviewed the information EPA reconstructed, including  handwritten notes.  We also selected a number of supporting documents  for review and found that the data reported agreed with the supporting  documentation.  These documents were also reviewed to determine if the  numbers of complaints reported to us matched those reported to EEOC.   Although we believe the reconstructed numbers are indicative of the  situation at EPA, we cannot attest to the overall accuracy of these data.
Table 1 shows the number of complaints on hand at the start of the year  and the number of new, closed, and on hand at the end of the year for fiscal  years 1995 through 2002 as reported to EEOC.   The number of complaints  closed fluctuated from a low of 44 in 1999 to a high of 123 in 2001.
For fiscal years 1995 through 2002, a total of 548 people filed 679  complaints.  The number of discrimination complainants is usually less  than the number of complaints filed because more than one complaint can  be made by a complainant.  As table 2 shows, the number of complainants  and discrimination complaints filed spiked in fiscal years 1998 and 2002.   OCR officials could not provide any explanation for the increased  complainants and complaints filed in these years.
The agency closed 588 complaints during this period, including 125  dismissals; 48 withdrawals; 222 agency decisions, none of which found for  the complainant; and 178 settlements.  Settlements represented 30 percent  of all discrimination complaints closed over the period.  In each year from  fiscal year 1996 to 2000, the number of cases settled at the agency  numbered less than 20, while 54 cases were settled in 2001.  These  settlements represented 44 percent of all discrimination complaint cases  closed in 2001.  According to agency officials, a number of settlements  were reached during 2001 as part of an effort to eliminate the large number  of backlogged complaints.
Settlements can be achieved by different methods.  For example, for the  years 1996 through 2001, a total of 29 discrimination complaint cases were  settled at the EEOC hearing stage while another 7 cases were settled while  pending before federal district courts.  Beginning in 2000, as required by  EEOC, EPA began a program to make Alternative Dispute Resolution  (ADR) available in precomplaint and formal complaint processes.  The  agency uses mediation as its alternative method to resolve EEO complaints  and administrative grievances.   During the first 6 months of fiscal year  2003, there were 18 requests for mediation, of which 14 EEO cases were  accepted for mediation, 1 case is under review, and 3 cases are pending  further action.
The data showed that headquarters discrimination complaints focused  mainly on race, reprisal, gender, and age.  The specific issues addressed in  these complaints were non-selection for promotion, appraisal, and  harassment.  Similarly, in regional offices the most often cited bases for  discrimination complaints were race, reprisal, and gender.  The specific  issues most cited in the regional complaints were non-selection for  promotion, appraisal, harassment, and time and attendance. Table 3 lists  the percentages of complaints by the bases of complaint. Table 4 lists the  percentages of complaints by the issues of the complaint.
EPA takes a long time to process complaints.  Over the fiscal years 1995- 2002 period, it took an average of 663 days from the time a complaint was  filed until it was closed.   A major contributing factor to this lengthy  process was the time used to investigate complaints.   Over the same 8-year  period, the average time to complete an investigation was 465 days.
EEOC regulations require EPA and other agencies to complete  investigations within 180 days of receiving discrimination complaints  unless the period is extended.   In 2002, the average number of days for  completed investigations was 427 days in comparison to the 180-day  standard.  Discrimination complaint cases closed in 2002 took an average  839 days to process.  When compared to the other 23 agencies that are  required to comply with the CFO Act, EPA’s total number of days to process  a complaint from filing to closing ranked fifth highest in 2002.
section_title: EPA Addressing Reliability of Data System
paragraphs: EPA is taking steps to improve data system reliability.  It contracted with a  company to procure an EEO data system and to train employees on how to  use the new software program.  This software (EEO-Net) is designed to  automate data entry, case tracking, and reporting requirements.  The  procurement process began in February 2002, and it was originally  estimated that the new system would be in place and fully operational in  June 2002.  An EPA official told us that the EEO-NET system became  operational on January 15, 2003.
OCR is depending on this new system to alleviate many of the inaccuracies  and inconsistency problems with discrimination complaint data.  Its  implementation is also expected to permit identification of trends, to alert  both regional and headquarters staff members of problem areas, and to  serve as an early warning system.  According to EPA officials, the new  system is expected to automatically and accurately generate data for  completing EEOC’s Annual Federal Equal Employment Opportunity  Statistical Report of Discrimination Complaints.  The Air Force has  successfully used the EEO-Net software program for over 3 years for  military personnel and is installing the program for use with its civilian  workforce.  Officials at the National Labor Relations Board, Broadcast  Board of Governors, Government Printing Office, and EEOC have all  recently installed the system and are pleased with the results thus far.
As discussed previously, data in the old system were not accurately  entered, updated, or maintained by EEO specialists.   In an interim effort to  resolve these data problems, OCR hired a person whose responsibilities  include entering, updating, and maintaining the data. OCR is also  developing new performance standards for EEO specialists that rate them  on inputting and maintaining the data.   The new performance standards  are intended to ensure that the data problems do not occur again.   Specialists are to be held accountable for maintaining accurate  discrimination complaint data as part of their assigned duties.
section_title: EPA Lacks Standard Procedures for Resolving Complaints, but This Is Being Addressed
paragraphs: According to OCR officials, EPA has never adopted standard operating  procedures for processing internal complaints of discrimination, but it  developed draft procedures in July 2001.  Although these procedures are in  draft form, OCR’s staff uses them as guidance.  EPA officials said they were  waiting until the EEO-Net software is fully operational to finalize the  standard operating procedures.   The system became operational in  January 2003, but as of May, the procedures were still in draft form.
The draft standard operating procedures provide detailed step-by-step  instructions for OCR’s staff to follow, from when a complaint is filed  through final resolution.  For example, Section II,”Checklist for Preparing  Correspondence,” includes instructions on when and how to prepare  mailings related to discrimination complaints.    Section IV of the  procedures addresses the steps necessary for OCR to process individual  complaints, including steps to follow upon complaint receipt, complaint  acknowledgment, request for EEO Counselor’s Report, and all subsequent  steps of the process up to the complaint’s resolution at the formal stage.   The draft standard operating procedures also identify data that can be used  by OCR for trend analysis and address management and tracking of  counselor assignments.
section_title: Staffing Levels Assigned for Complaint Resolution
paragraphs: OCR’s staffing has increased from four to nine in the past 8 years, and the  office plans to hire additional staff members. (See table 3.)   EEOC  regulations require that agencies provide sufficient resources to their EEO  programs to ensure efficient and successful operation.  EPA’s 2001 Federal  Managers’ Financial Integrity Act Report stated that EPA was unable to  process complaints in a timely manner and identified this situation as a  material weakness and an agency weakness.   The most recent report states  that OCR had hired additional staff members and made other changes, such  as changing contactors who conduct investigations, and now believes it  can ensure the timely processing of discrimination complaints and  recommends that this material weakness be closed.
OCR officials told us that additional staffing would help facilitate timely  processing of discrimination complaints.   In June 2002, they said that they  had two vacancy announcements out to recruit an additional GS-13 Equal  Employment Specialist to process complaints and one GS-14 Senior Equal  Employment Specialist to develop final agency decisions, prepare appeal  briefs, and process complex complaint cases.   OCR is currently planning to  fill only the GS-14 position and, as of May 2003, the selection process was  still under way.
In addition, OCR embarked on a training effort in 2001 to increase the  numbers of collateral duty counselors.  As a result, an additional 20  counselors were trained to serve as first points of contact for employees  considering filing discrimination complaints.  These counselors are not full- time.   They perform counseling duties in addition to their other assigned  duties.    The EEO counselors’ responsibility is to ensure that complainants  understand their rights and responsibilities under the EEO process.    Specifically, the counselor must let the complainants know that they can  opt for precomplaint resolution through participation in ADR or EEO  counseling.  Counselors also determine the claim and bases raised by the  potential complaint, determine the complainant’s timeliness in contacting  the counselor, and advise the complainant of the right to file a formal  complaint if ADR or counseling fails to resolve the dispute.
section_title: EPA Took Steps to Speed Complaint Processing
paragraphs: EPA has not processed complaints in a timely manner, and has had a long- standing  backlog of overdue cases.   The backlog was caused in part by  problems with contractors that conducted investigations that did not meet  evidence standards as outlined in EEOC regulations.   According to OCR  officials, some of the investigations performed by companies formerly used  by the office failed to provide adequate factual records required by EEOC  regulations.  As a result, these inadequate investigations did not contain the  facts needed, and the investigations were reassigned and redone resulting  in more time added to complaint processing.   Because of these problems  with incomplete and poorly done investigations, OCR terminated contracts  with certain investigative firms.
In June 2002, OCR contracted with a new company to conduct  discrimination complaint investigations.   An OCR official told us that the  company has demonstrated its ability to perform thorough and complete  investigations that meet EEOC’s standards for investigations.  OCR now  contracts with six companies to investigate complaints and is satisfied  overall with the investigations performed.    Also, OCR’s draft standard  operating procedures for processing complaints of discrimination require  that, prior to starting an investigation, OCR provide each investigator a  copy of its guidelines for conducting EEO investigations to ensure that  investigators understand what is required of them.   The office currently  has a blanket purchase agreement in place to hire four additional  companies to perform investigations.   Because of the relatively recent start  of the contract, an OCR official said that OCR did not have enough  statistical data to evaluate contractor effectiveness.   However, OCR said  that the situation regarding investigations was satisfactory.
In addition, EPA helped speed adjudication of backlogged cases by creating  a special task team in May 2001.   The initial focus of the team efforts was  on the completion of investigations and preparation of final agency  decisions on backlogged complaints.   Officials provided a final report that  discussed the team’s actions and how its stated mission was accomplished.   At the beginning of the team’s work, 139 discrimination complaints were  identified as active with investigations not completed for 180 days or more  as of June 1, 2001.   The report said that 45 reports of investigation were  completed and 17 were drafted and were under review, 18 final agency  decisions were issued and an additional 11 were drafted and under review,  10 cases were settled, 9 cases were withdrawn or dismissed, and 27  complainants had requested EEOC hearings.   Only 12 of the 139  complaints were still waiting for completion of an investigation.
In February 2002, OCR also selected a contractor to augment OCR’s staff by  providing EEO counseling, performing EEO investigations, and writing  draft agency decisions.  All draft agency decisions written by the contractor  are to be reviewed and revised, if necessary, by the Office of General  Counsel.  OCR officials said that OCR staff members are required to review  draft decisions written by the contractor within 48 hours.   EPA officials  said that they hope this policy will help prevent discrimination complaint  case backlogs from occurring as they had in the past.   Moreover, OCR says  it now works during the early stages of the complaint process to move  discrimination complaints to the ADR process, as appropriate.  If ADR is  successful, this can obviate the need for investigations.
section_title: EPA Has No Formal Process to Discipline Managers for Discrimination
paragraphs: In the event that a manager or employee is formally found to have  discriminated, EPA is supposed to determine on a case-by-case basis  whether individual employees should be disciplined.   However, EPA does  not have a process in place to review discrimination complaint settlements  to determine if any manager or employee has participated in improper  conduct and should be disciplined.    Agency officials said that settlements  are no fault, and in settlements no one admits to any wrongdoing and no  process is in place to make such determinations.   We recognize that EEO  complaints can be settled without there having been discriminatory  conduct involved in the case.   For example, an employee who is not  promoted may believe the reason was because of his or her race and file an  EEO complaint on this basis.   When the case is reviewed the agency could  find that while race was not a factor, the manager did not adhere to other  requirements of the merit promotion system.   As a result, the agency could  settle the complaint by agreeing to recompete the promotion and ensure  that all rules are followed and that the complainant would receive fair  consideration in the recompetition.   However, the possibility of  settlements not being related to discriminatory conduct does not alter the  fact that not having a process to determine whether discrimination was  involved means that any settlements involving discrimination may not be  identified as such.
EPA officials said that they provide managers the opportunity to change  their behavior through training rather than taking disciplinary action.  For  example, in 2001 senior agency officials expressed concerns about  managers’ conduct and their compliance with Title VII of the Civil Rights  Act of 1964, as amended.  These concerns led to a contract with EEOC to  conduct a 2-day mandatory training program for all 1,600 EPA managers in  June 2002.  EPA officials said that the training has improved managers’  interaction with employees.  However, it is unclear whether the improved  management interaction with employees will result in fewer discrimination  complaint filings.
Officials also said that the agency has EEO performance standards for  Senior Executive Service managers.  Managers are evaluated according to  their efforts to support EEO and fairness as part of the process for  determining who gets awards.   In addition, since 2001 EPA has required all  employees to sign statements acknowledging the agency’s zero-tolerance  policy towards discrimination or harassment by managers, supervisors, or  employees.
Accountability is a cornerstone of results-oriented management.  Because  EPA’s managers set the conditions and terms of work, they should be  accountable for providing fair and equitable workplaces, free of  discrimination and reprisal.  If EPA’s managers are not held accountable for  their actions in cases in which discrimination has occurred, employees may  not have confidence in the agency’s EEO disciplinary process, and  employees may be unwilling to report cases of discrimination.
Further, our past work has found that agencies that promote and achieve a  diverse workplace attract and retain high-quality employees.   For public  organizations, this translates into effective delivery of essential services to  communities with diverse needs.  Leading organizations understand that  they must support their employees in learning how to effectively interact  with and manage people in a diverse work place.   Fostering an  environment that is responsive to the needs of diverse groups of employees  requires identification of opportunities to train managers in techniques that  create a work environment that maximizes the ability of all employees to  fully contribute to the organization’s mission.   A high-performing agency  maintains an inclusive workplace in which perceptions of unfairness are  minimized and workplace disputes are resolved by fair and efficient means.    One way to foster openness and trust by employees is to have in place  systems that hold employees responsible for discriminatory actions.
subsections: section_title: Agriculture and IRS Processes Address Managerial Accountability
paragraphs: Agriculture Process:  In February 2003, EEOC issued a report on  Agriculture’s EEO program.  In this report, EEOC applauded Agriculture  for “holding managers accountable for their actions and disciplining them  where appropriate.”   Since January 1998, Agriculture has reviewed cases in  which discrimination was found or in which there were settlement  agreements to determine if employees should be disciplined.   The agency’s  regulations state that managers, supervisors, and other employees are to be  held accountable for discrimination, civil rights violations, and related  misconduct, as well as for ensuring that Agriculture’s customers and  employees are treated fairly and equitably.  Agriculture agencies are to take  appropriate corrective or disciplinary action, such as reprimands,  suspensions, reductions in grade and pay, or removal.  Final decisions  containing a finding of discrimination and settlement and conciliation  agreements are referred to the agency’s Human Resources Management  Office for appropriate action.  This office monitors corrective and  disciplinary actions taken in EEO and program discrimination matters.  As  a result of its process, Agriculture has taken over 200 corrective and  disciplinary actions against managers and other employees since 1998,  including removals, suspensions, and letters of reprimand.
IRS Process:  IRS offers another example of an agency process to review  settled EEO complaints to assess whether employees should be held  accountable.    Since July 1998, IRS has been reviewing cases in which  discrimination was found or in which there were settlement agreements to  determine if the discrimination was intentional.  Where an employee has  been found to have discriminated against another employee (or against a  taxpayer or a taxpayer’s representative), the Internal Revenue Service  Restructuring and Reform Act of 1998 provides that the individual be  terminated (Pub. L.105-206, Section 1203, July 22, 1998).  Only the IRS  Commissioner has the authority to reduce termination to a lesser penalty.
If there is a finding of discrimination, a settlement agreement is reached, or  EEO issues are raised during the negotiated grievance process, IRS’s Office  of Labor Relations refers the matter to the National Director, EEO  Diversity, Discrimination Complaint Review Unit.  Local and headquarters  EEO offices can also refer cases to the unit.   This review is designed to  alert management of any EEO-related misconduct regardless of the formal  pursuit of a remedy by an employee.   When it receives a case, the unit  determines whether formal review and fact-finding is required before  making a decision.  If so, the case file is forwarded to the Department of the  Treasury’s Inspector General for Tax Administration, with a copy of the  allegation referral form to Labor Relations.   Formal reviews are to be  completed within 60 days.   Labor Relations coordinates with the head of  the involved office if the unit finds no potential violations.  The office head  is responsible for determining the appropriate administrative disposition.   The office conducts a limited review of referred cases at the precomplaint  stage; after a formal complaint, formal withdrawal, or lapsed case due to  employee inaction; or if there was no finding of discrimination.   This  review makes management aware of any EEO-related misconduct  regardless of the formal remedy sought by an employee.
section_title: EPA Does Not Track Disciplinary Actions against Managers, but a New Law Requires This Information
paragraphs: Besides not having a process to determine whether managers  discriminated in settled cases, EPA does not have a process to track or  routinely report data on disciplinary actions taken against managers for  discrimination or other types of misconduct.  Data of this nature are  important because they can be a starting point for agency decision makers  to understand the nature and scope of issues in the workplace involving  discrimination, reprisal, and other conflicts and problems, and can help in  developing strategies for dealing with those issues.
Under the No FEAR Act signed into law in May 2002, agencies are required  to accumulate additional information about discrimination cases.  The  provisions of this act are to take effect October 1, 2003, and will require  EPA to begin tracking and accumulating data on disciplinary actions  resulting from discrimination.  Specifically, the act requires that federal  agencies file annual reports with Congress detailing, among other things,  the number of discrimination or whistleblower cases filed with them, how  the cases are resolved, and the number of agency employees disciplined for  discrimination, retaliation, or harassment.  These data requirements should  alert agencies and employees that they are accountable for their actions in  cases involving discrimination, retaliation, or harassment.  This legislation  demonstrates Congress’s high level of interest in discouraging  discriminatory conduct and reprisal at federal agencies and the need for  managers to be held accountable for such conduct.
section_title: Conclusions
paragraphs: EPA did not have accurate data on the numbers and types of discrimination  complaints made by its employees, and this in turn made discerning trends  in workplace conflicts, understanding the sources of conflict, and planning  corrective actions difficult.  These types of data are useful in helping to  measure an agency’s success in adhering to merit system principles,  treating its people fairly and equitably, and achieving a diverse and  inclusive workforce.  Having a data software system that can track cases  and provide EEO managers with the information needed to discern trends  to enable the development of policies is critical.   EPA is relying on its  newly procured EEO data system to overcome its data accumulation and  reporting problems.   Moreover, the agency is relying on that system to  provide it the capability to track cases and identify trends that may indicate  problems areas.   This, in turn, illustrates the importance of the new  system’s effective operation.
EPA has never had standard operating procedures for EEO complaint  processing and has been using draft procedures prepared in July 2001.   The  agency should finalize the draft procedures to help ensure that OCR staff  members know what they are to do and that a uniform process is used  nationwide.
EPA does not have a process to determine whether managers should be  disciplined for their actions in settled EEO complaint cases.   If agency  employees have the impression that EPA’s discrimination complaint  process does not discipline managers who participate in discriminatory  conduct, employees may be less willing to participate in the process.   Employees are less likely to file discrimination complaints if they perceive  that there is no benefit from doing so or if they fear reprisal.  A specific  process that holds managers accountable for discriminatory conduct may  enhance employee confidence in the EEO environment and demonstrate  the agency’s commitment to providing a fair and discrimination free  environment.
section_title: Recommendations for Executive Action
paragraphs: We recommend that the EPA Administrator direct that OCR evaluate its  new EEO software system to ensure it resulted in a reliable system for  tracking cases and accumulating accountability data for EEOC.   In  addition, the Administrator should direct that the draft standard operating  procedures for handling EEO complaints be finalized.  The Administrator  should also direct that a process be developed that assesses every case in  which discrimination is found or allegations of discrimination are settled to  determine whether managers, or other employees, should be disciplined.
section_title: Agency Comments
paragraphs: In a June 11, 2003, letter (see app. I), the Director of EPA’s Office of Civil  Rights commented on a draft of this report.  EPA generally agreed with the  report’s findings.  EPA said that the report shows that the agency has made  considerable progress in addressing the backlog of cases involving alleged  discrimination and that it believes it has in place the procedures and  resources to ensure that current and future complaints are timely  processed.
EPA’s comments did not mention our recommendation to evaluate its new  EEO software system to ensure that it meets the agency’s need to track  cases and accumulate accountability data.  The comments also did not  address our second recommendation about finalizing standard operating  procedures for handling EEO complaints that have been in draft for 2 years  and would be EPA’s first set of official procedures.  As we discussed in the  report, action on both of these recommendations is important to assuring  an effective EEO assurance program at EPA.
Regarding the recommendation to establish a process to assess whether  managers or other employees should be disciplined in cases in which  discrimination is found or allegations are settled, EPA said that it would  develop policies and procedures that will allow it to address effectively the  issue of disciplinary action against any manager or employee found to have  discriminated.  This action should, when completed, address the part of the  recommendation related to disciplinary action when discrimination has  been found.  However, it does not address the part of the recommendation  dealing with the need to assess whether disciplinary action should be taken  in cases where allegations of discrimination are settled.  As discussed  above, a process that holds managers accountable for discriminatory  conduct should enhance employee confidence in the EEO environment and  demonstrate the agency’s commitment to providing a fair and  discrimination free environment.
EPA also made several technical comments, which we incorporated in the  report where appropriate.
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If you have questions, please contact me on (202) 512-6082 or at  rezendesv@gao.gov or contact Thomas Dowdal, Assistant Director, at (202)  512-6588 or dowdalt@gao.gov.    Jeffery Bass, Karin Fangman, and Anthony  Lofaro made key contributions to this report.
section_title: Comments from the Environmental Protection Agency
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