Equal Employment Opportunity: Improved Coordination Needed between EEOC and OPM in Leading Federal Workplace EEO
Released: 2006-06-16T00:00:00

Letter

Background

It is government policy that equal opportunity be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of federal civilian employees. Various statutes, regulations, directives, executive orders, and other executive policies have been put in place over time to form the framework governing EEO in the federal workplace. This framework, which governs civil rights and personnel management, places primary responsibility on federal agencies to provide workplaces that have a culture of fairness, equity, and inclusiveness free from discrimination. For a further discussion of the EEO framework, see appendix II.

Within the EEO framework, both EEOC and OPM play important roles in leadership and oversight of federal agencies. EEOC’s mission is to promote equality of opportunity in the workplace and enforce federal laws prohibiting employment discrimination in both the private and federal sectors. In the federal sector, EEOC is responsible for enforcing the employment discrimination prohibitions under title VII of the Civil Rights Act of 1964, as amended; the Rehabilitation Act of 1973; the Equal Pay Act of 1973; and the Age Discrimination in Employment Act of 1967, as amended. In this regard, EEOC is responsible for establishing procedures for handling federal employees’ allegations of discrimination based on race, color, religion, gender, national origin, age, or disability, and providing for the adjudication of complaints and hearing of appeals. In addition, EEOC establishes requirements and standards for programs to provide equal employment opportunity; monitors federal agencies’ compliance with EEO laws and procedures; and reviews and assesses the effectiveness of agencies’ programs to promote EEO, including agencies’ efforts to identify and eliminate barriers to equality of employment opportunity.

OPM’s mission is to build a high-quality and diverse federal workforce based on merit system principles. Under title 5 of the U.S. Code, OPM is responsible for executing, administering, and enforcing civil service laws and regulations in the executive branch, including the merit system principles that require fair and equitable treatment and equal opportunity and prohibit discrimination in all aspects of federal employment. Title 5 also requires OPM to assist agencies in their equal opportunity recruitment program activities and to oversee and evaluate these agency programs. In carrying out their respective responsibilities, EEOC and OPM are to carry out oversight of each other, with EEOC reviewing OPM’s EEO programs and OPM assessing human capital practices at EEOC.

Both EEOC and OPM have articulated specific goals and objectives in their strategic plans to carry out their EEO-related responsibilities. These goals, while differing in some aspects, share a common theme, which is to promote policies that contribute to building high-performing organizations that foster inclusive work cultures. A primary focus for EEOC is to help agencies identify and eliminate barriers to EEO, while a key focus for OPM is to assist agencies in creating diverse candidate pools, including women, minorities, persons with disabilities, and veterans, which can be used in making appointments to the federal service in executive and management positions and leadership feeder ranks.

Carrying out the requirements of the EEO framework within federal agencies is generally shared by human capital and EEO/civil rights offices, with EEO offices taking the lead in programs EEOC oversees and human capital offices taking the lead in programs OPM oversees. Individual programs within the framework, their requirements or standards, and EEOC’s and OPM’s responsibilities are shown in table 1.

Although responsibility for the EEO framework policies is generally assigned to either EEOC or OPM, similarities in implementation requirements for federal agencies and the fact that both EEOC and OPM have jurisdiction over the agencies can result in overlap between programs and in EEOC’s and OPM’s oversight responsibilities.

In our survey, we asked EEO and human capital officials about their views on the requirements within the EEO framework, and about the guidance and feedback on these requirements they get from the central leadership agencies. (See app. III for excerpts from the survey questionnaire and responses to the excerpted questions.) For the purposes of our report, we defined EEO, affirmative employment, and workforce diversity as shown in figure 1.

We provided the five central leadership agencies—EEOC, OPM, the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and the Federal Labor Relations Authority (FLRA)—a draft of the survey instrument, considered their comments, and made appropriate changes before sending it to the federal EEO and human capital officials.

Survey Respondents View Certain Requirements as Contributing Most to EEO but See Redundancies and Differing Reporting Requirements as Creating Administrative Burden

In answering our questions about the extent to which policies and requirements contributed to ensuring EEO and achieving affirmative employment and workforce diversity at their agencies, survey respondents said that some requirements contributed more while others had a limited impact. Respondents identified Management Directive (MD) 715, Executive Order No. 13164, and the PMA scorecard standard as making a greater contribution toward ensuring EEO in their workplaces, while the impact of other policies, such as FEORP, Executive Order No. 13171, and the Disabled Veterans Affirmative Action Program (DVAAP), was more limited. (As we later discuss, a substantial number of respondents said several of these programs had very similar or redundant elements.) Although survey respondents expressed their views on the extent to which the different requirements contribute to EEO and workforce diversity at their agencies, we did not evaluate the value of these requirements toward meeting agency EEO objectives. Table 2 shows the survey results.

Because the integration of EEO into human capital is an integral part of government policy, we asked survey respondents the extent to which these policies and requirements influence human capital policies, practices, and strategic planning. We received responses similar to those for the question discussed above.

In explaining why the PMA scorecard standard positively influenced their agencies’ human capital policies, practices, and strategic planning, a number of officials we interviewed noted that the PMA scorecard had given greater visibility to the government’s requirements in dealing with underrepresentation and workforce diversity. These officials shared the view that agency performance in meeting deliverables and its direct connection to the “green (success)-yellow (mixed results)-red (unsatisfactory)” ratings given quarterly, is of major importance to agency management because of how the PMA performance review can affect agency budgets. These ratings are based on OPM’s and OMB’s assessments. Some officials’ interview comments concerning the PMA are shown in figure 2.

Survey Respondents View Some Policies and Programs as Having Very Similar or Redundant Requirements

The statutes, regulations, and policies that form the framework for EEO in the federal government establish a number of requirements that agencies are to carry out or standards they are expected to meet. Elements of the requirements that EEOC and OPM oversee or in fact established have certain common aspects, including measuring representation of or participation by race, ethnic, and gender groups and developing plans to address barriers to equal opportunity. Although we asked for the survey respondents’ views on the extent to which requirements were very similar or redundant and we made observations about where some similarities and redundancies exist, we did not evaluate the degree of similarity or redundancy among these requirements. Survey respondents also commented about the need for EEOC and OPM to better coordinate, with some commenting in particular about the need for the two agencies to work together to eliminate redundant and inconsistent requirements. We discuss the extent to which EEOC and OPM coordinate later in this report.

EEO and human capital officials surveyed were asked to identify the extent to which the elements making up the requirements of certain policies relating to the EEO framework were very similar or redundant with the requirements of at least one other policy, for example, whether any two policy requirements contained common features, such as developing plans, assessing progress, and preparing reports. To obtain more specific views, we asked respondents to select from a list two specific requirements that they believed were redundant; they also had the option of selecting none or responding that they did not know. Of the 81 respondents to this question, 57 (70.4 percent) said that at least one of the requirements was very similar or redundant to at least one other requirement. FEORP, for which OPM issued implementing regulations, was identified by 41 (50.6 percent) respondents as having very similar or redundant elements with the requirements of another policy; 30 (37 percent) said that EEOC’s MD-715 was very similar or redundant with another policy; and 19 (23.5 percent) said this of Executive Order No. 13171, Hispanic Employment in the Federal Government, which OPM oversees. When asked specifically to identify two requirements that were very similar to or redundant with each other, 21 (25.9 percent) respondents cited FEORP and MD-715, while another 15 respondents (18.5 percent) cited FEORP and Executive Order No. 13171.

A number of human capital and EEO officials with whom we spoke as well as survey respondents (who, in a few cases, we had previously interviewed) said that the overlap in MD-715, FEORP, and Executive Order No. 13171 requirements resulted in duplication of effort. As we reported in our April 2005 report on the EEO framework, both EEOC, under MD-715, and OPM, under FEORP and Executive Order No. 13171, require that agencies analyze their workforces to determine the representation of employee groups compared to their representation in the civilian labor force (CLF), identify barriers where underrepresentation exists, and develop steps to address barriers. In addition, agencies are also to report on the status and progress of their efforts annually. Thus, for example, an agency may have to submit similar information on its recruitment efforts, in different formats and at different times of the year, to EEOC for its MD- 715 report and to OPM for reports required under FEORP and Executive Order No. 13171.

With regard to redundancies, OPM said that it views EEOC’s MD-715 as constituting guidance and not as placing requirements on agencies, adding that the policy reflected in guidance can neither overrule nor stand in place of statutory requirements, such as those under FEORP, or the requirements set forth in executive orders pursuant to statutory delegations. EEOC disagreed, however, pointing out that it issued MD-715, articulating agency responsibilities, pursuant to its authority under law and executive order.

Many survey respondents reported redundancies in policies and requirements concerning persons with disabilities. There are common elements in EEOC’s and OPM’s roles in the area of employees with disabilities, which are reflected in requirements in EEOC’s MD-715 relating to affirmative action plan requirements in Section 501 of the Rehabilitation Act, and Executive Order No. 13163, Increasing the Opportunity for Individuals with Disabilities to Be Employed in the Federal Government, and DVAAP, both administered by OPM. Of 81 respondents, 54 (66.7 percent) said there were redundancies among these requirements concerning persons with disabilities. For example, 39 (48.2 percent) said MD-715 requirements for persons with disabilities had very similar or redundant elements with at least one other requirement, and 36 (44.4 percent) cited Executive Order No. 13163. In identifying which two specific requirements had the most redundancies, 24 (29.6 percent) respondents cited MD-715 and Executive Order No. 13163.

EEO and human capital officials’ concerns about redundant requirements mirror the findings of a 1993 report of the National Partnership for Reinventing Government (NPR) (formerly the National Performance Review), From Red Tape to Results: Creating a Government That Works Better and Costs Less. The report said that an inordinate amount of resources are devoted to preparing duplicative reports and recommended that reporting requirements for agencies be blended into one comprehensive assessment of EEO and affirmative employment efforts, including specific actions needed to eradicate barriers and increase representation. The report said that such action would help reduce administrative costs and allow agencies to spend more time on results rather than paper processes. At the time the NPR report was issued, primary elements of the EEO framework were more limited, and included EEOC’s MD-713 (on persons with disabilities) and MD-714 (on minorities and women), as well as OPM’s FEORP requirements. Since then, additional parts of the policy framework have been put into place, including Executive Order Nos. 13163, 13164, and 13171; the Notification and Federal Employee Antidiscrimination and Retaliation (No FEAR) Act; MD-715 (which superseded MD-713 and MD-714); and the PMA and Human Capital Accountability and Assessment Framework (HCAAF) standards. These additions to the framework, and to EEOC’s and OPM’s responsibilities, have added to the redundancy and administrative burden.

Federal EEO and human capital officials, in responding to our survey and in the course of our interviews, provided specific comments about some of the policies and requirements administered by EEOC and OPM. See figure 3 for some of these comments.

Survey Respondents Say Different Reporting Policies Create Burdens for Their Agencies

Human capital and EEO officials reported they experience additional administrative burden because EEOC and OPM have different policies in some areas with regard to workforce data collection or analysis. These areas include categorization of data by occupation and race and ethnicity and collection of data on job applicants.

Historically, both EEOC and OPM categorized data on an agency’s workforce according to six occupational categories: professional, administrative, technical, clerical, other white-collar, and blue-collar (PATCOB). In 2004, EEOC changed to nine occupational categories: officials and managers, professionals, technicians, sales, office and clerical, craft workers, operatives, laborers, and service workers. According to EEOC, it made the change because the PATCOB categories were outdated and too imprecise to allow the level of analysis desired, and because EEOC uses the nine categories for private sector workforce analysis. OPM contends that the PATCOB categories continue to support its governmentwide occupation classification responsibility and provide more meaningful crosswalks to national workforce data. OPM also said the nine occupational categories EEOC uses are too broad for meaningful analysis because they combine too many occupations within one category. Further, OPM said that the crosswalk now used by EEOC to classify federal occupations into one of the nine categories is inaccurate and incomplete in some areas.

Under EEOC’s previous reporting requirements using the PATCOB categories, agencies could download data from the government’s Central Personnel Data File (CPDF), which OPM maintains, to fulfill EEOC analysis and reporting requirements. With the new occupational categories, agencies must now develop computer programs to follow a crosswalk that classifies federal occupations into one of the nine categories. This burden may be lessened in the future. According to EEOC and OPM officials, the two agencies have had discussions about occupational categories in relation to OPM’s new Enterprise Human Resources Integration (EHRI) system, which will replace CPDF as the central source for federal workforce data and will afford agencies the opportunity, for a fee, to perform complex workforce analysis and planning tasks and maintain personnel records in electronic form. At the time of our review, EEOC and OPM officials said that a statement of work has been proposed that if approved and put in place could enable EEOC and other agencies to use EHRI for purposes related to MD-715 reporting. However, OPM also noted that there were separate policy and legal implications that must be resolved. In addition, according to OPM, while much of the information sought under MD-715 is contained within the EHRI database, EHRI will not be able to provide data on applicants, non-appropriated fund employees, or CLF comparisons.

Some EEO and human capital officials commented that another difference between EEOC and OPM requirements that caused increased administrative burden is how workforce data were reported by race and ethnicity categories. In 1997, OMB issued revisions to standards for the classification of federal data on race and ethnicity which were to be adopted as soon as possible but no later than January 1, 2003. In the instructions for MD-715, issued in March 2004, EEOC required agencies to report data to EEOC under the minimum categories designated by OMB under the revised standards for data on race and ethnicity. EEOC encouraged agencies to collect data on race and national origin in a more detailed fashion as required in OMB’s revised standards (for example, by allowing employees to identify themselves as members of more than one race) so long as the data can be aggregated into the categories EEOC required under MD-715. EEOC required agencies to resurvey those employees who had previously identified themselves as Asian/Pacific Islander in order to break out those employees into the two new categories (Asians and Native Hawaiian or Other Pacific Islander). EEOC also required agencies to give all new hires and those for whom the agency did not have race or national origin information, the opportunity to self-identify their race and national origin, including the ability to identify their membership in more than one race. OPM updated the CPDF to conform to OMB’s revised standards in January 2006. OPM requires data from agencies in accordance with the OMB format for new employees only; it does not require agencies to resurvey their workforces because it has no authority to do so, according to OPM officials.

Another area where a policy disagreement arose that some officials said presents challenges to agencies involved gathering and analyzing applicant- flow data. EEOC, in MD-715, requires agencies to analyze data on race, national origin, gender, and disabilities voluntarily provided by job applicants in order to begin to identify areas where barriers may be excluding certain groups. OPM takes the position that agencies are not required or authorized to collect race, national origin, gender, and age information on applicants. In the past, OPM said it opposed collecting race and national origin data from job applicants because collecting such data would be costly, ineffective, and a reporting burden. According to OPM, agencies collecting applicant data could involve significant legal risks— such collection could be construed as pressuring agencies to engage in preferential treatment in order to achieve “results” in terms of workforce composition, as suggested by certain recent discrimination cases. EEOC defends the appropriateness of collecting and analyzing applicant data. In commenting on a draft of this report, EEOC said that federal agencies are bound by the Uniform Guidelines on Employee Selection Procedures (issued jointly by EEOC, the Civil Service Commission (OPM’s predecessor), and the Departments of Justice and Labor), which requires employers to request racial and ethnic data from applicants and analyze applicant-flow data. Because of OPM’s position that agencies are not required or authorized to collect racial or national origin data from applicants, EEOC officials told us that EEOC has not offered official guidance to agencies concerning applicant-flow data collection, although EEOC has given informal verbal guidance on request.

Figure 4 shows some officials’ comments on reporting requirements.

Agencies Are More Satisfied with Guidance and Feedback from EEOC Than with That from OPM and Believe Both Could Do More

A large majority of survey respondents and officials we interviewed suggested both EEOC and OPM could do more in their oversight and leadership roles to ensure EEO in the workplace and achieve workforce diversity by providing clearer guidance and feedback and by working together to improve the quality of such guidance.

A majority of agency EEO and human capital officials responding to our survey said that guidance and feedback from EEOC was useful or very useful, while less than half said that about guidance and feedback from OPM.

Officials Believe Both EEOC and OPM Could Do More to Help Agencies with EEO, Workforce Diversity, and Affirmative Employment

Survey respondents who served as points of contact with the central leadership agencies—EEOC, OPM, MSPB, OSC, and FLRA—indicated that on matters concerning EEO, affirmative employment, and workforce diversity they interacted primarily with EEOC and OPM over the 2 years leading up to our survey. Respondents who had at least some interaction with EEOC and OPM did not see either agency as particularly helpful in assisting them in ensuring EEO in the workplace or achieving EEO-related objectives. While, as discussed below, survey participants found some usefulness to guidance and feedback from EEOC and OPM, of those having at least some interaction with these agencies, 27 of 48 respondents (56.3 percent) said that EEOC was of some, little, or no help, and 36 of 45 respondents (80 percent) said the same of OPM. (See table 3.)

The majority of these respondents—37 of 48 (77.1 percent) for EEOC and 29 of 45 (64.4 percent) for OPM—said those agencies should be doing more to help agencies ensure EEO in the workplace and achieve affirmative employment or workforce diversity. Some of the officials we interviewed and survey respondents offered their comments on how EEOC and OPM could do this. (See fig. 5.)

Officials’ Views on Guidance and Feedback from EEOC and OPM

Although respondents said that EEOC and OPM should be doing more to help agencies, they did find some usefulness, in varying degrees, in guidance and feedback from EEOC and OPM. For example, with regard to guidance concerning EEO, affirmative employment, or workforce diversity, about 79 percent of the respondents who had at least some interaction with EEOC said that guidance from EEOC personnel was useful or very useful while about 42 percent of respondents who had at least some interaction with OPM said that guidance from OPM personnel was useful or very useful. Figure 6 shows survey respondents’ perceptions of the usefulness of guidance from EEOC and OPM.

With regard to feedback on their agencies’ performance or on the contents of reports submitted under the EEO framework, from 45 to 60 percent of respondents who had at least some interaction with EEOC said that feedback from EEOC was useful or very useful, while less than 34 percent of those respondents who had at least some interaction with OPM said that of feedback from OPM. Figure 7 shows survey respondents’ perceptions on the usefulness of feedback from EEOC and OPM.

Figure 8 provides selected critical written comments from survey respondents and EEO and human capital officials we interviewed. These comments provide insight about the limitations of the guidance and feedback from EEOC and OPM.

Limited Coordination between EEOC and OPM Limits Efficiency

Respondents to our survey said that more coordination between EEOC and OPM would benefit their agencies, and would not only help reduce or avoid duplication of effort but could also foster better cooperation between EEO and human capital offices within agencies. The overlapping responsibilities that EEOC and OPM have under the EEO framework create a need and opportunity for coordination between the two agencies. However, we found little coordination or information sharing between EEOC and OPM, particularly among staff responsible for day-to-day oversight of federal agencies. A lack of a mutual understanding of one another’s authority, roles, and responsibilities contributes to this limited coordination, which in turn can result in lost opportunity to realize consistency, efficiency, and value in EEO policy making and oversight and in making EEO integral to human capital management.

EEO and Human Capital Officials Said That EEOC- OPM Coordination Would Benefit Their Agencies

“If you believe that increased coordination between any two central leadership agencies and the requirements and guidance they provide would benefit your department/agency, which two agencies would you pick?”

Of the 80 EEO and human capital officials who responded to the survey, 70 (86 percent) specifically identified EEOC and OPM. “ represent the lead agencies for Human Resources and EEO, respectively. If federal agencies reporting to OPM and EEOC were able to witness and experience increased coordination between these two central leadership agencies, it would encourage better communication and coordination between the HR and EEO programs within the respective agencies.” “EEOC and OPM should lead by example in planning, developing, coordinating and implementing guidance designed to assist federal agencies. An apparent lack of coordination between OPM and EEOC often interferes with successful achievement of systematic integration of EEO/diversity principles and policies into management systems and functions. From my perspective, it is crucial to rethink some reporting initiatives and shift attention to building a strong partnership between OPM and EEOC to fully utilize and integrate their areas of expertise to avoid fragmentation. OPM should make it a priority [to work together] closer with EEOC in assessing progress and lead the way in providing models of EEO/diversity performance standards.”

The benefits of better coordination within agencies were highlighted by an EEOC official, who stated that review of barrier analysis in reports submitted under MD-715 showed that the highest quality analysis had come from agencies where there was more coordination between human capital and EEO staffs.

Government Policy Has Recognized the Importance of Coordination in Carrying Out EEO; Coordination between EEOC and OPM Is Good Management

For nearly 30 years, government policy has recognized the importance of a coordinated effort in carrying out federal actions to ensure EEO. For example, under the FEORP regulations, OPM provides that it will coordinate with EEOC on activities to implement equal opportunity recruitment programs under FEORP, consistent with law; 5 U.S.C. § 7201, the Reorganization Plan No. 1 of 1978, and Executive Order No. 12067, Providing for Coordination of Federal Equal Opportunity Programs. The reorganization plan and the executive order gave EEOC responsibility for promoting efficiency and eliminating conflict, competition, duplication, and inconsistency in the implementation of EEO requirements, and provided coordination principles for federal departments and agencies to follow in enforcing EEO requirements. Coordination of federal EEO efforts is also guided by EEOC regulation.

Additions to the EEO framework changing EEOC’s and OPM’s responsibilities since 1978 have made adherence to the underlying principle of coordination between agencies with overlapping responsibilities even more necessary. We have reported that the lack of coordination between federal agencies with overlapping responsibilities creates a situation wherein scarce funds are wasted, program customers are confused and frustrated, and the overall effectiveness of the effort is limited. Most recently, in October 2005, we reported that agencies with overlapping responsibilities can enhance and sustain their collaborative efforts and produce more public value by engaging in certain practices, such as defining and articulating a common outcome; agreeing upon agency roles and responsibilities, including leadership; and establishing compatible policies, procedures, and other means to operate across agency boundaries. Clearly, these principles apply to EEOC’s and OPM’s roles within the EEO framework. “the roles and responsibilities of EEOC and OPM present an opportunity for them to work together to provide leadership and training necessary to integrate EEO into every aspect of human resource management policy and practice. These two agencies must make a concentrated effort to ensure ongoing communications and understanding of EEO and affirmative employment efforts to achieve a diverse, competent, and productive federal workforce. They must provide joint leadership to EEO, civil rights, and personnel professionals to create, develop, review, and improve effective ongoing governmentwide efforts.”

The NPR suggested a number of actions, which could be implemented administratively or by presidential order, which it believed would “decrease duplicated efforts and redundancy… and foster coordinated, governmentwide commitment to creating, implementing, and accomplishing equal opportunity and affirmative employment goals.” These included establishing an Interagency Equal Employment Opportunity and Affirmative Employment Steering Group under the joint chair of EEOC and OPM, and combining all equal opportunity and affirmative employment reports into one comprehensive assessment of the total workforce EEO/affirmative employment data. The report said that implementing the actions would require ongoing commitment and coordination between EEOC and OPM.

Coordination between EEOC and OPM Is Limited, Particularly with Regard to Oversight

Lack of coordination or information sharing was particularly evident between the persons at EEOC and OPM who do the day-to-day work of overseeing EEO at federal agencies. Officials at EEOC told us they do not review agency FEORP reports, and some of those responsible for oversight were not familiar with the FEORP requirements. Regarding their on-site reviews, EEOC officials told us that they were generally unaware of OPM’s approach to oversight, including the use of HCAAF, and that they do not coordinate with OPM staff who may be doing or have done similar on-site audits at the same agencies nor do they regularly receive or review material from those OPM audits.

In discussions with OPM staff, we learned that staff engaged in agency oversight do not make use of agency reports to EEOC, nor do they consult EEOC in assessing the element of the PMA scorecard that deals with reducing underrepresentation and sustaining diversity. This occurred even though OPM acknowledged overlap in its Oversight and Effectiveness Evaluation Handbook for its Merit Systems Compliance Program, which was used for staff guidance before being withdrawn in 2003. Although no longer in use, OPM’s stated premise in the handbook that its enforcement and evaluation responsibilities coincide to a large extent with EEOC responsibilities because EEO is integral to personnel management and to many of the regulations that OPM administers remains valid.

In a 2005 assessment of OPM’s Merit Systems Compliance Program, OMB also found a need for OPM to improve its coordination with EEOC. OMB made the assessment using its Program Assessment Rating Tool (PART). OMB reported it found no evidence that OPM benchmarks its activities against similar efforts, such as those at EEOC. OMB indicated that although EEOC has the statutory responsibility to coordinate EEO efforts, OPM should seek opportunities for collaboration with EEOC in order to improve overall government efficiency in the area of compliance reviews. OMB noted that although OPM indicated that it was collaborating with EEOC, OPM provided no documentary evidence of any collaboration. OMB recommended that OPM collaborate with EEOC on activities that overlap and further recommended that there be a regular/formal working relationship between the two agencies.

In addition, OPM, in preparing the annual FEORP report to Congress, does not consult with EEOC, as EEOC guidelines to OPM regulations indicate it should. In their discussions with us, some OPM officials responsible for oversight were either (1) unaware of EEOC’s affirmative employment program requirements, EEOC’s oversight of federal agencies, or both or (2) mistakenly believed that EEOC’s authority was limited to dealing with violations of title VII of the Civil Rights Act, in particular, discrimination complaints.

We also found that EEOC and OPM did not, for the most part, coordinate EEO information and guidance on their respective Web sites. While each Web site contains information about each agency’s policies, programs, and operations, and both sites contain pages referring to policy and program areas where both agencies have responsibilities, the EEOC Web site had no links to relevant OPM Web pages, and OPM’s links to EEOC’s Web-based information were not specific, which limited their value. For example, see the following: EEOC’s Web page entitled “How Other Civil Rights Agencies Address EEO Issues” neither mentioned OPM nor contained any links to the OPM Web site.

Neither agency Web site had links to the other agency’s Web site regarding relevant policies and procedures for persons with disabilities.

The OPM Web site has an online diversity guide for federal agencies, which covers the demographic and legal framework and offers guidance for building a diverse workforce. In the discussion of title VII as part of the framework, the link provided by OPM is only to EEOC’s home page and not to more specific guidance, such as EEOC’s Web page entitled “Reference and Research,” which lists applicable guidance on federal- sector EEO that would potentially be more relevant and helpful.

After we brought this issue to its attention, EEOC undertook an effort, which was still under way at the time of our review, to provide links to relevant information on OPM’s Web site. OPM said that because Web pages are subject to change, it is more practical to send a reader to a home page rather than to subject-specific information. However, while the content of Web pages may change, we believe that the subject matter of the pages is less likely to do so.

EEOC officials acknowledged a need for better coordination between the two agencies. EEOC’s Strategic Plan for Fiscal Years 2004–2009 states that the agency “will reinvigorate its leadership of equal employment policies and programs” in accordance with Executive Order No. 12067. However, we noted that the plan does not contain any reference to coordinating with OPM. Senior EEOC officials believed there was a lack of awareness on OPM’s part of EEOC’s role beyond complaints management. EEOC officials said that there is a need for a formal coordination mechanism. EEOC officials also suggested that EEOC and OPM conduct joint oversight visits of agencies. They also suggested that allowing EEOC to become a member of the Chief Human Capital Officers Council, which the OPM Director chairs, may present an opportunity for closer coordination of EEO and human capital management.

OPM officials, on the other hand, did not think that a formal coordination mechanism was necessary. A senior official in OPM’s General Counsel’s office told us that (1) there is a need to clarify “boundaries” and that there has probably been some confusion between the OPM and EEOC program and reporting requirements, (2) some EEOC requirements under MD-715 encroach on OPM’s authority and responsibility, and (3) OPM has broad authority based on title 5 of the U.S. Code and its placement of responsibility on OPM to enforce the merit system principles. OPM made its concerns known to EEOC in its comments on a draft of MD-715. For example, with regard to the “Model Agency Title VII and Rehabilitation Act Programs” under MD-715, OPM questioned EEOC’s authority to tell agencies how to organize their internal structures. OPM also commented that it was unclear whether or how plans for employing persons with disabilities under MD-715 differ from the plans agencies are required to create and submit to OPM under Executive Order No. 13163. According to an official from the General Counsel’s Office, EEOC had not been responsive to OPM’s concerns.

Conclusions

Because they both have roles and responsibilities in federal workplace EEO under the federal statutory and regulatory framework, it is incumbent upon EEOC and OPM to avoid unnecessary conflict, competition, duplication, and inconsistency in policies and requirements. In order to carry out EEO framework requirements efficiently and effectively, EEOC and OPM need to resolve their policy disagreements; take a broad and comprehensive view of their overlapping engage in serious and substantial efforts to gain a mutual understanding of each other’s authorities, roles, and responsibilities under the federal workplace EEO framework; determine how those authorities, roles, and responsibilities can be exercised in a collaborative way; and enhance their communication and coordination.

EEOC and OPM together need to examine the collective requirements of the EEO framework and determine where and how requirements can be streamlined and consolidated in a way that is consistent with the government’s policy goals, supports their respective missions and oversight responsibilities, and reduces administrative burden. In doing so, EEOC and OPM need to consider the judgments that survey respondents made about the value of the different requirements in contributing to their EEO and workforce diversity objectives, and the redundancies they identified that add to their administrative burden.

Besides increasing program administration effectiveness and public value, better coordination between EEOC and OPM could, at the agency level, foster greater involvement between EEO offices and their human capital counterparts in the development of their agencies’ human capital plans and policies. In addition to working together on these matters, EEOC and OPM need to work to make their guidance and feedback more useful to federal agencies. Because of the long-standing nature of this lack of effective coordination, additional congressional oversight is necessary to help ensure that the two agencies work together meaningfully. As EEOC and OPM already report annually to Congress on federal workforce EEO, reporting on steps they have taken to improve coordination would facilitate congressional oversight.

Recommendations for Executive Action

To resolve the issues noted in our report, we recommend that the Chair of EEOC and the Director of OPM take the following five actions: Develop means to communicate and coordinate on a continuing basis, establish collaboration protocols, and work to resolve their disagreements to the maximum extent possible concerning their respective responsibilities in developing policy, providing guidance, and exercising oversight under the EEO framework for the federal workplace.

Explore opportunities to consolidate and streamline similar and redundant requirements and resolve inconsistencies within the EEO framework, including reporting requirements, in a manner that could lead to a single report to fulfill the needs of both EEOC and OPM, particularly related to requirements under MD-715 and FEORP. Where both EEOC and OPM believe that a statute or an executive order is an impediment to streamlining or resolving inconsistencies, the agencies could jointly recommend appropriate action to Congress or the President.

Work together to improve their collective guidance, feedback, and assistance to other agencies on EEO.

Determine from agency-level EEO and human capital managers what additional guidance they need in carrying out their responsibilities, how to make their feedback more useful, and what more EEOC and OPM can do to help agencies to ensure EEO in the workplace and achieve workforce diversity objectives.

Work together to convene regular meetings of senior federal workplace EEO/civil rights officials and chief human capital officers in order to further integrate EEO and human capital.

Examples of how these recommendations could be implemented include (but are not limited to) the following: regularly exchanging data from reports submitted by agencies to EEOC and OPM; adopting a common format for reports to EEOC under MD-715 and reports to OPM under FEORP; resolving policy disagreements regarding the collection and use of collaborating to help ensure that EHRI can support agencies in meeting both EEOC and OPM reporting requirements; regularly meeting and exchanging information between EEOC and OPM staff performing oversight of the same agency; identifying opportunities for joint reviews of an agency’s EEO and establishing an “e-diversity” Web page created and maintained jointly by EEOC and OPM; and meeting jointly with federal agency EEO and human capital managers during on-site visits.

Matter for Congressional Consideration

The Congress should require EEOC, in its Annual Report on the Federal Workforce, and OPM, in its annual FEORP report, to include a joint report of actions they have taken or plan to take to (1) increase coordination and communication with each other, (2) consolidate and streamline like requirements of the EEO framework and resolve inconsistencies, and (3) improve guidance and feedback to agencies.

Agency Comments and Our Evaluation

We provided a draft of this report to the Chair of EEOC and to the Director of OPM for their review and comment. We received written comments from both agencies, which are reprinted in appendixes V and VI, respectively. In commenting on our recommendation that EEOC and OPM develop means to communicate, collaborate, and coordinate on a continuing basis, EEOC stated that it did not disagree that it and OPM could further strengthen their collaborative efforts. While OPM also agreed that there is room for improvement, and that it would reinstate the practice of consulting with EEOC as it prepares the annual FEORP reports, it believed that with respect to other matters, a more appropriate approach was to continue to coordinate on an as-needed basis and that a requirement for formal coordination would add a layer of complexity to an already complex situation. While we are sensitive to the need to limit unnecessary complexity, as was evident from our survey, areas exist where agencies feel additional administrative burden, in large measure, because OPM and EEOC have not coordinated their oversight efforts. Gaining a mutual understanding of each other’s authorities, roles, and responsibilities and determining how those authorities could be exercised collaboratively could provide immediate results in improving overall government efficiency in oversight. OMB made a similar recommendation to OPM in 2005 with respect to those programs where it shares oversight responsibility with EEOC. We also believe that this collaboration could extend to examining the potential for jointly conducting on-site reviews and audits in a manner that would not compromise confidentiality.

EEOC and OPM, in their comments, both seem to have misinterpreted our conclusions and recommendations, inferring that our intent was to have EEO oversight functions merged or “folded” into one of the two agencies. This is not our intention. Our conclusions and recommendations are directed toward streamlining and consolidating the information-gathering process, with the analytic and reporting functions remaining separate as they currently are in each agency.

Both EEOC and OPM stated that they are limited in the steps that they could take to consolidate or streamline agency reporting requirements because regulations, executive orders, or statutes give EEOC or OPM sole responsibility for each program. We agree that statutes and executive orders place responsibility for administering and reporting on certain programs with EEOC or OPM, but they do not mandate the method for collecting information from agencies to carry out the programs. Therefore, these agencies could develop and distribute a common data collection instrument that both EEOC and OPM could use to fulfill their respective responsibilities. We continue to believe that streamlining requirements and resolving inconsistencies within the EEO framework would reduce administrative burdens on agencies, thus allowing them to focus more of their efforts on results. We revised our recommendation to make it clear that where EEOC and OPM believe that a statute or an executive order is an impediment to streamlining or resolving inconsistencies, the agencies could jointly recommend appropriate action to Congress or the President.

OPM expressed concern over use of the phrase “affirmative employment,” stating that the phrase may be misunderstood as relating to past EEO programs that have come under criticism and are the subject of ongoing litigation involving allegations of improper preferential treatment. We are aware of case law that has addressed federal EEO policies or practices and the issue of improper preferential treatment, as well as the ongoing litigation involving allegations of preferential treatment related to affirmative employment plans, which date back to superseded MDs issued by EEOC. However, under the federal antidiscrimination statutes, the federal sector remains obligated to go beyond merely addressing complaints of alleged discrimination—to take positive (affirmative) steps to ensure EEO. It is this federal-sector obligation to which we refer when we use the phrase “affirmative employment.” Further, OPM expresses concern about our reference to “workforce diversity.” We do not believe our use of the term “workforce diversity” is unique or inconsistent with OPM’s broad policies in the area. Rather, as our definition clearly provides, workforce diversity is a very broad concept and is not limited to recognizing the differences protected from discrimination by statute.

We provide additional responses to EEOC’s comments in appendix V and to OPM’s comments in appendix VI.

We are sending copies of this report to the Chair of EEOC, the Director of OPM, and other interested parties. Copies will be made available to others upon request. This report is also available at no charge on GAO’s Web site at http://www.gao.gov.

If you or your staff have any questions concerning this report, please contact me at (202) 512-9490. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Staff who made major contributions to this report are listed in appendix VII.

Objectives, Scope, and Methodology

Our objectives were to (1) obtain federal agency equal employment opportunity (EEO) and human capital managers’ views of the requirements dealing with EEO, affirmative employment, and workforce diversity and the extent to which the requirements contribute to ensuring EEO, affirmative employment, and diversity in the workplace; (2) obtain EEO and human capital managers’ views on the guidance and feedback given them by the Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM) on EEO, affirmative employment, and workforce diversity issues; and (3) determine how and to what extent EEOC and OPM coordinate with each other in developing policy, providing guidance, and exercising oversight of line agencies, as well as obtaining EEO and human capital managers’ views on EEOC and OPM coordination and how it affects their work.

Our primary method for fulfilling these objectives was to design and administer a survey to federal agency EEO and human capital managers. We designed our survey using background information and interview results from audit work done for our previous report on the EEO framework, issued in April 2005. This included (1) the results of a review of the statutory, regulatory, and policy framework governing EEO, affirmative employment, and workforce diversity in the federal government; (2) interviews with EEO and human capital managers at six selected federal agencies; and (3) discussions with senior officials at the central leadership agencies, mostly with officials of EEOC and OPM. The instrument was designed originally by members of the audit team and a survey methodologist, and was reviewed internally by survey professionals and by GAO senior management prior to pretesting. We conducted pretests to ensure that (1) the questions were clear and unambiguous, (2) terminology was used correctly, (3) the questionnaire did not place an undue burden on agency officials, and (4) the survey was comprehensive and unbiased.

We pretested the survey instrument at four federal agencies. At each agency, we did two pretests, one with EEO staff and one with human capital staff, for a total of eight pretests. We revised the draft survey based on the pretest results and subsequently sent a draft of the survey instrument to each of the central leadership agencies—EEOC, OPM, the Office of Special Counsel, the Merit Systems Protection Board, and the Federal Labor Relations Authority-for their review and comment. We then made further revisions as appropriate based on the comments from these agencies.

We prepared a distribution list for the survey, with the survey recipients being a senior manager for EEO and diversity (usually the director of the agency EEO or civil rights office) and a senior human capital manager (usually the chief human capital officer or director of human resources) at each federal agency that (1) had a total employment of 500 or more persons and (2) was required to file an annual affirmative employment report with EEOC and an annual Federal Equal Opportunity Recruitment Program report with OPM. (EEOC requires agencies with 500 or more employees to include in their annual reports a plan for attaining the essential elements of a model EEO program and a plan to eliminate identified barriers that impede the full realization of EEO for employees and applicants.) The final distribution list consisted of 90 recipients—the senior EEO and human capital managers—at 45 agencies. Together, the 45 agencies employed 97 percent of the nonpostal federal workforce as of September 30, 2004. The 45 agencies are listed in appendix IV.

We distributed the survey by e-mail on October 19, 2004, and received replies until December 10, 2004. We received completed surveys from 83 of the 90 managers or their delegates, for a return rate of 92.2 percent. We received completed surveys from both EEO and human capital officials at 38, or 84 percent, of the 45 agencies.

The survey results were keypunched into an electronic database. Because this was not a sample survey, there are no sampling errors. However, the practical difficulties of conducting any survey may introduce errors, commonly referred to as nonsampling errors. For example, difficulties in how a particular question is interpreted, in the sources of information that are available to respondents, or in how the data are entered into a database or were analyzed can introduce unwanted variability into the survey results. We took steps in the development of the questionnaire, the data collection, and the data analysis to minimize these nonsampling errors. We verified the accuracy of a small sample of keypunched records by comparing them to their corresponding questionnaires, and we corrected any errors found. Less than 1 percent of the data items we checked had random keypunch errors that would not have been corrected during data processing. Analysis programs were also independently verified. The questions used in this report were asked in the larger survey of this population. Relevant excerpts from the tabulated results are included in appendix III (results are presented in percentages, unless otherwise indicated).

We also invited survey recipients to make written comments on the survey instrument concerning the issues covered in the survey. We received a number of such comments, some of which are reproduced in the report. We did not independently verify the statements made in any of the comments.

As stated above, we relied largely on the survey to address the first two objectives. In addition, we considered the results of interviews of EEO and human capital officials at 6 of the 45 agencies. Our response to the third objective, concerning coordination between EEOC and OPM, was based partially on the survey results. For this objective, we also used information that we gathered from senior EEOC and OPM officials and staff involved in agency oversight during our earlier engagement on the EEO framework. We discussed this information, including guidance used by EEOC and OPM staff responsible for agency oversight and knowledge of each other’s policies and oversight practices and the nature and extent of their coordination, with these officials to ensure that it was still accurate.

In reporting the survey responses in tabular or graphic form in the report, in accordance with commonly accepted methodological practice, we combined two responses (such as “very useful” and “useful”) into one reporting category. In reporting responses to questions concerning the usefulness of EEOC or OPM feedback, we regarded only “very useful” and “useful” as positive responses, and regarded a “somewhat useful” response as not indicating satisfaction with guidance and feedback.

We performed our audit work from May 2004 through February 2006 in accordance with generally accepted government auditing standards.

The Framework for EEO in the Federal Workplace

Statutes, executive orders, and other executive policies form the framework relating to EEO in the federal workplace. This framework, which governs civil rights and personnel management, places primary responsibility on federal agencies to provide workplaces that have a culture of fairness, equity, and inclusiveness free from discrimination.

In 1964, Congress passed the landmark Civil Rights Act, prohibiting discrimination on the basis of race, color, religion, gender, or national origin in a number of areas, including employment, housing, voting, and education. Title VII of the act addresses employment discrimination and created EEOC. When the Civil Rights Act of 1964 was enacted, the prohibitions against discrimination under title VII did not apply to the federal government as an employer, although the act did state that it was the federal government’s policy that employment actions be free of discrimination. The government’s EEO policy for federal workers had been addressed in executive orders. For example, Executive Order No. 11478, issued in 1969, stated the government’s policy to (1) provide equal opportunity in federal employment for all persons; (2) prohibit discrimination in employment because of race, color, religion, gender, or national origin; and (3) promote the full realization of EEO through a continuing affirmative program in each executive department and agency. According to the order, the policy of equal opportunity should be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of federal civilian employees.

Federal workers and applicants for federal employment received broad statutory protection against employment discrimination with the passage of the Equal Employment Opportunity Act of 1972. The hallmark 1972 act extended to federal workers the protections of title VII of the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, religion, gender, or national origin in employment matters, such as recruitment, hiring, wages, promotions, benefits, discipline, discharge, and layoffs. In addition, the 1972 amendments, enacted in part to address the underrepresentation of minorities and women, require each federal department and agency to prepare plans to maintain an affirmative program of EEO. Under the plans, agencies are required to establish training and education programs designed to provide a maximum opportunity for employees to advance and perform at their highest potential.

The Rehabilitation Act of 1973 extended employment discrimination protections to federal employees and applicants for employment with disabilities. Section 501 of the Rehabilitation Act also requires federal departments and agencies to prepare affirmative action program plans for the hiring, placement, and advancement of individuals with disabilities. These plans are to be updated annually and describe the extent to which the special needs of employees with disabilities are being met and the methods used.

A separate program was established for disabled veterans. The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, requires agencies to have a separate affirmative action plan for the recruitment, employment, and advancement of disabled veterans that is to be part of agencies’ efforts under the Rehabilitation Act for individuals with disabilities. This program is referred to as the Disabled Veterans Adjustment Assistance Program.

Besides the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, two executive orders issued in 2000 are to enhance EEO in the federal government for persons with disabilities. Executive Order No. 13163, Increasing the Opportunity for Individuals with Disabilities to Be Employed in the Federal Government, was implemented to support the goals of the Rehabilitation Act and promote an increase in federal employment opportunities for persons with disabilities. Under the order, agencies are required, among other things, to expand outreach efforts, increase efforts to accommodate disabled individuals, and prepare plans to increase the employment opportunities for individuals with disabilities. Executive Order No. 13164, Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation, promotes a model federal workplace that provides reasonable accommodation for individuals with disabilities in the application process and for employees to perform the essential functions of a position and enjoy benefits and privileges of employment. Under the order, agencies are required to establish written procedures for processing requests for reasonable accommodation.

The Civil Service Reform Act of 1978 (CSRA), in overhauling federal personnel laws, strengthened protections against discrimination and retaliation in the federal workplace and underscored the government’s commitment to ensuring EEO and to addressing underrepresentation. The CSRA stated that in order to provide a federal workforce that reflects the nation's diversity and to improve the quality of federal service, federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices. The CSRA listed nine merit system principles, the first two of which directly apply to EEO in promoting a fair, equitable, and inclusive workplace: Recruitment should be of qualified individuals from appropriate sources in an endeavor to achieve a workforce from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills after fair and open competition that ensures that all receive equal opportunity.

All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.

The CSRA also required that personnel actions should be free from prohibited personnel practices, including discrimination for or against any employee or applicant for employment based on race, color, religion, gender, national origin, age, handicapping condition, marital status, or political affiliation.

The CSRA further emphasized the government’s resolve to ensure EEO and to address underrepresentation. The act required that executive agencies conduct a continuing program for recruiting minorities to address underrepresentation of minorities in the federal workplace. This program is referred to as the Federal Equal Opportunity Recruitment Program.

Executive Order No. 13171, Hispanic Employment in the Federal Government, issued in 2000, affirmed ongoing policies for equality of opportunity in federal employment and recommended additional policies to eliminate the underrepresentation of Hispanics in the federal workforce. The order requires agencies, among other things, to (1) develop recruiting plans for Hispanics that create a fully diverse workforce and (2) assess and eliminate any systemic barriers to the effective recruitment and consideration of Hispanics. The order established the Interagency Task Force to review best practices, provide advice, assess overall executive branch progress, and recommend further actions in eliminating the underrepresentation of Hispanics.

Government policy for dealing with underrepresentation and workforce diversity is also articulated in the implementation of the President’s Management Agenda (PMA). The PMA, implemented in fiscal year 2002, is a strategy for improving the management and performance of the federal government. The PMA contains five governmentwide goals to improve federal management and deliver results, including the strategic management of human capital. For each goal, agency performance in implementing the PMA is assessed using a scorecard. Among the standards on the scorecard within the strategic management of human capital goal is how well agencies address underrepresentation and implement programs to sustain diversity. The human capital standards were developed by OPM and the Office of Management and Budget, in consultation with the President’s Management Council.

In 2002, acting to address continuing concerns about discrimination and retaliation in the federal workplace, Congress passed the Notification and Federal Employee Antidiscrimination and Retaliation (No FEAR) Act. The provisions of the act attempt, among other things, to enhance the accountability of EEO management and address the causes of and remedies for workplace conflict that can give rise to discrimination and retaliation complaints. The No FEAR Act holds agencies financially accountable for the costs of judgments and settlements in discrimination cases and also focuses on the policies that agencies have implemented to hold individuals who unlawfully discriminate against others accountable for their conduct. Agencies are also to notify and provide training for their employees on their rights and protections in cases of discrimination and reprisal. In addition, the No FEAR Act stipulates that agencies are to submit annual reports that contain discrimination complaint data, an evaluation of the data to identify underlying causes, and actions planned or taken to improve their civil rights and complaint programs. Furthermore, in enacting this law, Congress expressed its intent that federal managers should receive adequate training in managing a diverse workforce, dispute resolution, and other essential communication skills.

Other statutes that protect workers in the private sector also protect federal workers. 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, as amended, protects individuals who are 40 years of age or older from age- based employment discrimination.

Excerpts from EEO Leadership Survey Questionnaire and Summary Results

Introduction

The policy of the U.S. government is to provide federal employees a workplace that is fair, equitable, and free from discrimination and retaliation. To further equal employment opportunity (EEO), the government has created, over time, a statutory, regulatory, and policy framework. This framework requires federal agencies to carry out affirmative employment programs to help bring about a diverse workforce reflective of all segments of society. Enforcement of statutes and regulations is in the hands of five central leadership agencies: the Office of Personnel Management (OPM); the Equal Employment Opportunity Commission (EEOC); the Office of the Special Counsel (OSC); the Merit Systems Protection Board (MSPB); and the Federal Labor Relations Authority (FLRA).

GAO, an independent agency of Congress, is collecting information governmentwide from department and agency representatives serving in human resources and EEO/civil rights offices regarding EEO, affirmative employment, and diversity in the federal workplace. GAO is conducting this survey on the initiative of the Comptroller General, after having received a request from Senator Joseph Lieberman, Ranking Minority Member of the Senate Committee on Governmental Affairs. This survey contains questions about how your department/agency is organized to carry out statutes, regulations, and policies; your perceptions of the various requirements in achieving a diverse and nondiscriminatory workplace; and your perceptions on the guidance central leadership agencies provide. The survey does not address managing and adjudicating individual discrimination complaints, prohibited personnel practices, grievances, and appeals.

You can make an important contribution to this study by responding to this questionnaire, so that GAO may provide the most complete information to Congress. The GAO report to Congress will discuss the usefulness of (1) the various requirements in helping to ensure EEO in your department/agency’s workplace and achieving affirmative employment and workforce diversity objectives and (2) guidance and feedback central leadership agencies provide in helping your department/agency carry out the requirements for EEO, affirmative employment, and workforce diversity.

The GAO report will present information from this questionnaire in summary form. The final report will not identify the responses of individuals by name or department/agency.

When answering the questionnaire, please feel free to consult with other appropriate officials within your office for information or comments. However, we ask that you consolidate your office’s responses so that you only return one copy to GAO. The questionnaire should take about 45 minutes to complete.

If possible, please return this questionnaire within 2 weeks of receiving this e-mail. After that time, if you have not been heard from, GAO will attempt to contact you in order to confirm that you have received this questionnaire. If necessary, GAO may also contact you once we receive your response to clarify information.

Please complete this questionnaire in MS-Word, save it, and return it as an attachment via e-mail to Leadership_Survey@gao.gov. If you wish to complete the questionnaire by phone, please call one of the numbers listed below. If you prefer to print the survey out and fax it back, you can fax the survey to (202) 512-2502.

If you have any questions about the contents of this questionnaire, please contact Phone: (202) 512-8383 e-mail: lofaroa@gao.gov If you encounter any technical difficulties, please contact Monica Wolford Phone: (202) 512-2625 e-mail: wolfordm@gao.gov Thomas Beall Phone: (202) 512-3278 e-mail: beallt@gao.gov Please use your mouse to navigate by clicking on the field, button or check box you wish to answer.

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Do not “unlock” this document because this will erase your answers. If you wish to include comments about a particular question, include it, with the question number, in the final question at the end of each section.

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Glossary of Policies, Programs, and Activities DVAAP - Disabled Veterans Affirmative Action Program (requires each department/agency to have a program for the recruitment, advancement, and employment of disabled veterans, and to submit an annual report on the program to OPM).

Employing Individuals with Disabilities, EO 13163 - Executive Order 13163: Increasing the Opportunity for Individuals with Disabilities to be Employed in the Federal Government.

Providing Reasonable Accommodation, EO 13164 - Executive Order 13164: Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation.

Hispanic Employment Initiative, EO 13171 - Executive Order 13171: Hispanic Employment in the Federal Government (requires departments/agencies to have an ongoing program for recruitment and career development of Hispanics in Federal employment, and requires OPM to monitor department/agency programs and provide guidance).

FEORP - Federal Equal Opportunity Recruitment Program (requires departments/agencies to have a continuing program for the recruitment of minorities and women to eliminate underrepresentation and to file annual reports with OPM regarding their efforts).

HCAAF - Human Capital Accountability and Assessment Framework (standards used by OPM to evaluate department/agency human capital performance).

MD 713 - EEOC Management Directive 713: Affirmative Action for Hiring, Placement, and Advancement of Individuals with Handicaps (prepared pursuant to EEOC’s authority under Section 501 of the Rehabilitation Act of 1973; mandated adoption of affirmative employment plans for persons with disabilities, and annual reporting of progress to EEOC; replaced by MD 715).

MD 714 - EEOC Management Directive 714: Hiring, Placement, and Advancement of Minorities and Women (prepared pursuant to EEOC’s authority under Section 717 of Title VII of the Civil Rights Act of 1964; mandated adoption of affirmative employment plans for African Americans, Hispanics, Asian/Pacific Islanders, Native Americans, and women, and annual reporting of progress to EEOC; replaced by MD 715).

MD 715 - EEOC Management Directive 715 (supercedes Management Directives 713 and 714 and provides policy guidance and standards for establishing and maintaining effective affirmative programs of EEO under Section 717 of Title VII of the Civil Rights Act and effective affirmative action programs under Section 501 of the Rehabilitation Act; issued in October 2003).

No FEAR - Notification and Federal Employee Antidiscrimination and Retaliation Act (requires agencies to report and analyze discrimination complaint data, be accountable for costs of judgments and settlements in discrimination cases, and train managers in skills necessary to manage a diverse workforce).

OSC 2302(c) certification program - Office of Special Counsel’s 2302(c) Certification Program (empowers OSC to certify that agencies have taken the actions necessary to ensure that their employees are informed of their rights and available remedies pertaining to prohibited personnel practices under Title V of the U.S. Code, especially for retaliation for whistleblowing).

PMA - President’s Management Agenda (a strategy for improving the management and performance of the federal government); contains five governmentwide goals, including strategic management of human capital; the human capital goal contains among its standards for success one relating to agencies’ addressing under-representation and implementing programs to sustain diversity.

For the purpose of this questionnaire please use the following definitions: Equal Employment Opportunity (EEO) is the policy embodied in law that requires employment actions be free from prohibited discrimination, including discrimination on the basis of race, religion, gender, national origin, age, disability, and retaliation for filing discrimination claims or other protected activity.

Affirmative Employment is a program designed to identify and eliminate discriminatory practices and policies and to ensure EEO. In the federal sector, affirmative employment includes actions by federal departments/agencies to identify and eliminate barriers to EEO in accordance with the policies of the EEOC and the OPM.

Workforce Diversity indicates the extent to which people in a workforce are similar and different from each other, including race, ethnicity, disability, and gender. Workforce diversity may also take into account other factors, such as background, education, work roles, and personality.

Q11. For which of the following, if any, is your office the primary point of contact with OPM? 46.9 Employing Individuals with Disabilities, EO 13163 49.4 FEORP 51.9 DVAAP 48.1 Hispanic Employment Initiative, EO 13171 37.0 PMA standards on under-representation and workforce diversity 34.6 HCAAF Q12. What has been the extent, if any, of your office’s interaction (i.e., receiving or seeking guidance or feedback) with OPM over the last 2 years on EEO, affirmative employment, or workforce diversity? 1.2 Very extensive interaction 7.4 Extensive interaction 18.5 Moderate interaction 28.4 Some interaction 42.0 Little or no interaction 2.5 Don’t know Q13. Overall, during the last 2 years, how useful has guidance concerning EEO, affirmative employment, or workforce diversity from each of the following OPM sources been for your office? 13a OPM personnel 13b Written materials 13e. Overall during the last 2 years, how useful has guidance on EEO, affirmative employment, or workforce diversity from OPM Web resources been? 15.9 Very useful 31.8 Useful 29.6 Somewhat useful 11.4 Not at all useful 4.6 Don’t know Q14. How useful was OPM’s guidance for the following?

Q15. How useful was OPM’s feedback on your department/agency’s performance or feedback on the contents of reports or documents submitted to OPM for the following?

DVAAP Hispanic Employment Initiative, EO 13171 PMA standards on under-representation and workforce diversity HCAAF Q16. During the past 2 years, has OPM given technical assistance to staff in your office on aligning your department/agency’s affirmative employment, diversity, or human capital goals and measures with OPM’s governmentwide cross-cutting affirmative employment, diversity, and human capital goals and measures (such as those in OPM’s strategic plan)? 2.2 Not familiar with OPM’s governmentwide cross-cutting goals and measures Q17. Over the last 2 years, to what extent, if any, has OPM helped your office ensure EEO in the workplace and achieve affirmative employment or workforce diversity objectives? 0.0 Very great extent 2.2 Great extent 13.3 Moderate extent 33.3 Some extent 46.7 Little or no extent Q18. Do you believe OPM should be doing more to help your department/agency ensure EEO in the workplace and achieve affirmative employment or workforce diversity objectives? 8.9 Don’t know Q18a. Please briefly describe what types of additional assistance from OPM would be most helpful to ensure EEO in the workplace and achieve affirmative employment or workforce diversity objectives.

Q20. If you have any additional comments on the questions in this section or on OPM’s assistance to ensure EEO in the workplace and achieve affirmative employment or workforce diversity objectives, please write them below.

Q21. For which of the following, if any, is (or was) your office the primary point of contact with EEOC?

Previous requirements under MD 713 for employment of persons with disabilities 54.3 Previous requirements under MD 714 for minorities and women 58.0 Current requirements under MD 715 63.0 Providing Reasonable Accommodation, EO 13164 25.9 None of the above Q22. Excluding complaint processing, what has been the extent of your office’s interaction (i.e., receiving or seeking guidance or feedback) with EEOC over the last 2 years on EEO, affirmative employment, or workforce diversity? [Check only one answer] 17.5 Very extensive interaction 15.0 Extensive interaction 17.5 Moderate interaction 10.0 Some interaction 33.8 Little or no interaction 6.3 Don’t know Q23. Excluding complaint processing, overall, during the last 2 years, how useful has guidance on EEO, affirmative employment, or workforce diversity from each of the following EEOC sources been for your office?

Q23e. Excluding complaint processing, overall, during the last 2 years, how useful has guidance on EEO, affirmative employment, or workforce diversity from EEOC Web resources been? 39.6 Very useful 29.2 Useful 25.0 Somewhat useful 2.1 Not at all useful 2.1 Don’t know Q24. How useful was EEOC’s guidance for the following?

Q25. How useful was EEOC’s feedback on your department/agency’s performance or feedback on the contents of reports or documents submitted to EEOC for the following?

Q26. During the past 2 years, has EEOC given technical assistance to staff in your office on aligning your department/agency’s affirmative employment or workforce diversity goals and measures with EEOC’s governmentwide cross-cutting affirmative employment or workforce diversity goals and measures (such as those in EEOC’s strategic plan)? 2.1 Don’t know 8.3 Not familiar with EEOC’s governmentwide cross-cutting goals and measures Q27. Excluding complaint processing, over the last 2 years, to what extent, if any, has EEOC helped your office ensure EEO in the workplace and achieve affirmative employment or workforce diversity objectives? 10.4 Very great extent 6.3 Great extent 25.0 Moderate extent 25.0 Some extent 31.3 Little or no extent 2.1 Don’t know Q28. Do you believe EEOC should be doing more to help your department/agency ensure EEO in the workplace and achieve affirmative employment or workforce diversity objectives? 2.1 Don’t know Q28a. Please briefly describe what types of additional assistance from EEOC would be most helpful to ensure EEO in the workplace and achieve affirmative employment or workforce diversity objectives.

Q29. If you have any additional comments on the questions in this section or on EEOC’s assistance to ensure EEO in the workplace and achieve affirmative employment or workforce diversity objectives, please write them below.

Q48a. Based on your experience or knowledge, which two, if any, of the following that deal with employment of persons with disabilities seem to have very similar or redundant requirements (e.g. developing plans, assessing progress and preparing reports)? (Whole numbers presented instead of percentages.) 10 None have very similar or redundant requirements 22 DVAAP 39 Requirements under MD 715 regarding persons with disabilities 36 Employing Individuals with Disabilities, EO 13163 5 Providing Reasonable Accommodation, EO 13164 0 Other program or policy (please specify) 17 Don’t know Q48b. Based on your experience or knowledge, which two, if any, of the following seem to have very similar or redundant requirements (e.g., developing plans, assessing progress, and preparing reports)? (Whole numbers presented instead of percentages.) 9 None have very similar or redundant requirements 41 FEORP 19 Hispanic Employment Initiative, EO 13171 5 HCAAF performance standards 8 PMA standards on under-representation and workforce diversity 30 Requirements under MD 715 6 No FEAR Act 0 OSC 2302(c) certification program 0 Other program or policy (please specify) 15 Don’t know Q49. If you believe that increased coordination between any two central leadership agencies and the requirements and guidance they provide would benefit your department/agency, which two agencies would you pick? [Check only two boxes] (Whole numbers presented instead of percentages.) 3 Don’t believe there would be benefit from increased coordination [Go to 2 Don’t know Q49a. Why did you choose these two agencies?

Impact of Requirements on Department/Agency Human Capital Policies Q51. To what extent, if at all, do the following currently influence the formulation of your department/agency’s human capital policies, practices, and human capital strategic planning?

Q52. If you have any additional comments on the impacts of these federal requirements helping to ensure EEO in the workplace and achieving affirmative employment or workforce diversity objectives and influencing your department/agency’s formulation of human capital policy and its human capital strategic plan, Please write them below.

Q53. If you have any additional comments on any previous question or any other comments about EEO in the workplace and achieving affirmative employment or workforce diversity objectives, please make them below.

Thank you for completing this survey.

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Agencies from Which Respondents Returned the EEO Leadership Survey Questionnaire

Comments from the Equal Employment Opportunity Commission

The Honorable David M. Walker Comptroller General of the United States United States Government Accountability Office Washington, D.C. 20548 Thank you for the opportunity to review the report entitled EQUAL EMPLOYMENT OPPORTUNITY, Improved Coordination Needed between EEOC and OPM in Leading Federal Workplace EEO. GAO-06-214.

First, we wish to make clear that it is EEOC’s view that the multiple areas of information collection which GAO has described as redundant in the GAO report are not in fact unnecessary. Several federal agencies have information collection requirements which overlap but serve different purposes.

By analogy, EEOC and the Office of Federal Contract Compliance Programs serve different legislative mandates but often collect similar information. Also, the Wage and Hour Division of the United States Department of Labor collects payroll information that EEOC seeks in Equal Pay Act cases.

Likewise, OPM’s FEORP looks only at recruiting activities and outcomes as well as human capital practices used to recruit and develop the federal workforce. In contrast, reports submitted pursuant to EEOC’s Management Directive 715 look at wide-ranging employment activities to ensure that equal employment opportunity is being embraced and implemented by all federal agencies.

In conclusion, let me assure you that the Commission will continue to work closely with the Office of Personnel Management to eliminate reporting inefficiencies while adhering to our respective statutory constraints. Attached to this letter are several more detailed observations we have regarding this report.

Again, thank you for the opportunity to review this report.

Use of Survey Results and Overall Thrust of Report is Misleading The GAO draft report at several points suggests that various agency officials perceive the requirements of OPM’s FEORP program and EEOC’s MD-715 as ‘very similar” or “redundant.”

The use of the word redundancy in both the survey responses and in the draft implies or creates the impression that certain EEOC and OPM programs coverage and/or reporting requirements are congruent, or similar in most or all respects. However, the FEORP and MD-715 programs are dissimilar in a great number of respects, and the scope of the information analyzed by MD- 715 is much broader than FEORP. A short discussion of each program demonstrates this point: FEORP is limited to recruitment, in the broader sense of hiring, training and career development, by federal agencies. However, OPM by its own admission does not collect applicant flow information about the race, national origin and sex of recruits for federal jobs.

Instead agencies comply with FEORP by submitting snapshot workforce information annually to OPM on the workforce by race, national origin and gender of their employees. Agencies also provide anecdotal information on Workforce Planning, Recruitment and Outreach, Mentoring and Career Development Opportunities. Moreover, the 2005 OPM Annual Report to Congress on FEORP actually gives no information on the race, national origin or sex of applicants for federal jobs, or of the impact of agencies’ efforts to enhance the diversity of federal recruits.

Instead, the Annual FEORP report only provides a snapshot of the race, national origin and sex of individuals already employed in the federal workforce, whether recently hired or with 30 years service. The report implies that if the federal workforce is diverse, then federal agency recruitment efforts must be working properly. The FEORP annual report also analyzes employment participation for underrepresentation. Some anecdotal information about agency initiatives in the area of Workforce Planning, Recruitment and Outreach, Mentoring and Career Development Opportunities is reported by individual agencies, but no statistical analysis of those individual agency recruitment efforts, or of agency recruitment efforts government-wide, is provided by OPM in the Annual Report. Finally, OPM, according to survey respondents, does not provide feedback to agencies on their FEORP reports. (Figure 8, page 29)

Contrast that with the much broader scope of EEOC’s MD-715 which requires that agencies report by race, national origin, sex and disability of employees and applicants affected by numerous federal agency employment practices from outreach and recruitment (requiring that agencies collect and report applicant flow information) to hiring, participation rates across the general schedule, and in major occupations, training, non-competitive promotions, merit promotions for major occupations, participation in career development and training, awards and separations. Moreover, and unlike OPM’s FEORP program, EEOC’s practice is to require agencies to do in-depth barrier analysis to identify and eliminate barriers to the employment opportunities, using snapshot information from the agency workforce, underrepresentation analyses and several other sources of information. After agencies submit their MD-715 reports, EEOC provides them feedback, in the form of extensive technical assistance, both in person and in writing.

GAO “did not evaluate the degree of similarity and redundancy among these requirements” (p.15). Because GAO did not conduct a careful comparison of the degree of redundancy of any of the programs mentioned in the draft report, the analysis is insufficient.

Statutory Requirements Limit Options to Streamline Reporting Requirements Although the survey conducted by GAO reports that several agencies officials expressed views that there is redundancy in some programs (FEORP, CSRA and MD-715, Title VII), (Rehabilitation Act and Executive Order 13163), neither OPM nor EEOC is free to eliminate any redundancy by ignoring the requirements of statutes enacted by Congress or Executive Orders promulgated by the President which assign responsibility over a given program to an individual agency. In other words EEOC clearly cannot simply “fold” OPM’s FEORP requirements into its MD-715 program without going against the plain meaning of the Civil Service Reform Act which assigns responsibility of reporting under the FEORP to OPM. See 5 U.S.C. 7201(e) (requiring OPM to prepare and transmit a report to each House of Congress on FEORP not later that January 31 of each year).

Likewise, EEOC cannot simply absorb OPM’s responsibilities under E.O. 13163 into the MD-715 Rehabilitation Act reporting requirements without ignoring the plain requirements of the Executive Order. See 3 C.F.R. 13163 (d) (requiring that each Federal agency shall prepare a plan to increase the opportunities for individuals with disabilities to be employed in the agency).

If GAO is suggesting that EEOC and OPM should consolidate allegedly redundant reporting requirements of EEO programs into a single agency, the Commission believes that these solutions should be initiated by Congress and/or the President. This being said, EEOC does not disagree with GAO that the Commission and OPM can further strengthen their collaborative efforts. There is always room for improvement.

GAO’s draft fails to note (p. 6) that its survey was conducted between October 2004 and December 2004 prior to agency submission of annual reports under MD-715 in January 2005 or EEOC’s issuance of feedback letters. Thus, GAO’s comments regarding feedback were likely based on feedback under the now obsolete Management Directives 713 and 714.

The GAO draft mischaracterizes EEOC’s positions or responses on some issues. For example, GAO reports that EEOC changed the nine occupational categories because the PATCOB categories were outdated and too imprecise to allow the level of analysis desired.

However, EEOC expanded to the nine categories not only because this change provided a better refinement and alignment of the data to be evaluated, but also because the nine categories are based on the occupational categories EEOC uses for conducting similar analyses in the private sector. The Commission strives for consistency and uniformity in the enforcement of its EEO responsibilities across sectors.

Also GAO mistakenly notes that EEOC officials said that it had “not offered official guidance to agencies concerning applicant-flow data collection.” In fact, MD-715 requires the collection of applicant flow data. EEOC formed an interagency working group in 2004 to assist in the development of an applicant flow collection form. EEOC sought to accomplish two objectives: to assist in framing the questions on the form that ask for applicant information using the revised race categories and methods approved by OMB, and to ensure that other proper language and guidance was used in creating the forms.

In 2004, several agencies informed EEOC that they would not collect applicant flow data unless and until OPM developed new race reporting codes that could be used by the agencies to report the data in agency personnel and OPM databases. OPM revised the race categories in the CPDF database in August 2005, with required use by January 1, 2006.

Several of GAO’s concerns require further information and/or discussion: The draft report noted “policy inconsistencies and disagreements’ that EEOC and OPM should address and resolve, but failed to specifically identify them; An explanation as to how EEOC’s more narrowly defined nine occupational categories could be “too broad for meaningful analysis because they combine too many occupations within one category,” but the six broader categories they replaced are not; Specific identification of the inaccuracies and omissions in the “crosswalk“ developed to classify federal occupations into one of the nine categories; The basis for the statement that the collection of applicant flow data would be “costly, ineffective and a reporting burden” (p. 23); and Support for the statement that collecting applicant data could involve significant legal risks and that such collection could be construed as “pressuring agencies to engage in preferential treatment in order to achieve ‘results’ in terms of workforce composition, as suggested by recent discrimination cases.” It should be noted that federal agencies are bound by the Uniform Guidelines on Employee Selection Procedures (UGESP), which require employers to request race and ethnic data from applicants and analyze applicant flow data. UGESP is a joint federal rule issued by EEOC, DOL, DOJ, and OPM.

A large part of EEOC’s mission involves proactive prevention of discrimination. In addition to the work that the report describes on page 9, we have an extensive outreach and technical assistance program within the federal sector. We provide this service to all federal agencies, including many who were not participants in the survey that forms the foundation for this report.

Please note that we: Conduct quarterly EEO Director’s meetings which cover a variety of topics, as well as feedback sessions where EEO Directors can share with EEOC issues and suggestions for other training sessions.

Provide regular opportunities for discussions on topics such as Model EEO Programs.

Completed 109 Technical Assistance visits to agencies in FY 05; to date, we have completed 75 in-person Technical Assistance visits this fiscal year.

Conducted 486 in-person training sessions in FY 04 and 05, reaching more than 21,000 federal employees.

Received and reviewed 120 reasonable accommodation procedures from agencies and provided individualized written feedback on each set of procedures, as well as additional written feedback on 84 procedures that were subsequently resubmitted.

Recently published Practical Advice for Drafting and Implementing Reasonable Accommodation Procedures which summarizes best practices and common problems identified through our review of reasonable accommodation procedures.

Updated our website to provide direct links to relevant OPM reports. It now links to information on OPM’s annual Federal Equal Opportunity Recruitment Program (FEORP) report, as well as OPM’s Executive Order 13171 report (Hispanic Employment Program Statistical Reports) at: http://www.eeoc.gov/abouteeoc/coordination/whatothersdo.html.

Lastly, GAO uses workforce data on FY 2004 when FY 2005 data are now available. (p. 3).

As of March 31, 2006, we have provided written feedback in response to 119 of the 120 submissions. Work on the remaining feedback letter is currently in progress.

The following are GAO’s comments on EEOC’s letter dated May 16, 2006.

GAO Comments

1. EEOC expresses the view that the multiple areas of information collection, which we have described as redundant, are in fact necessary, and points out that several federal agencies have information collection requirements that overlap but serve different purposes. EEOC offers as an example that it and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) serve different legislative mandates but often collect similar information. Our research shows that EEOC and OFCCP jointly developed a form (EEO-1) to meet the needs of both agencies. Further, parties make a single submission to the joint committee, made up of EEOC and Department of Labor staff. We believe that EEOC’s collaboration with OFCCP is a positive example of collaboration that EEOC and OPM could emulate in seeking opportunities for streamlining and consolidating information gathering from federal agencies. 2. We recognize the differences in EEOC’s and OPM’s authorized responsibilities. However, this does not obviate our point that similar information to meet both requirements could be collected through a single common instrument, from which EEOC and OPM could extract the information needed for their separate reports. EEOC and OPM should look for ways to minimize the impact of these differences on agencies. 3. This draft report and an earlier report on the EEO framework present similarities and differences in responsibilities of EEOC and OPM and in the requirements they place on agencies. In this report, we present the informed views of EEO and human capital officials surveyed for the report who deal with various requirements daily. In presenting these views, it was beyond the scope of our review to independently analyze the validity of the responses. We believe that it is more appropriate for EEOC and OPM to explore opportunities to streamline and consolidate similar and redundant requirements and, in doing so, to seek the views of agency EEO and human capital managers who are responsible for carrying out the requirements. 4. The statutes and executive orders place responsibility for EEO-related programs on EEOC and OPM, as noted. However, the responsibility relates to administering the programs and reporting results, not in collecting data. We believe that there is no statutory impediment in title VII or in the CSRA that would prevent EEOC and OPM from devising and distributing a common data collection instrument, the information from which would be subsequently used by the two agencies in separately analyzing the data and reporting under FEORP and Management Directive (MD) 715. Should EEOC and OPM conclude that certain coordination or streamlining efforts might not be authorized under current statutes, executive orders, or regulations, they could modify regulations, request that the President revise relevant executive orders, or request that Congress amend relevant statutes to bring about greater efficiency in how EEOC, OPM, and federal agencies meet the requirements of the EEO framework. We clarified this in the report. 5. Figure 7, which shows survey respondents’ perceptions of the usefulness of feedback from EEOC on agency performance or contents of reports or documents submitted under MD-713 and MD-714, contains a note that these requirements were operational during the early part of the survey period. Together, the requirements under MD-713 and MD- 714, including submitting annual reports, had much in common with the requirements under MD-715. In addition, EEOC issued feedback letters to agencies on reports submitted under MD-713 and MD-714. Because the first reports under MD-715 were not due until after the survey period, it was not possible to ask survey recipients for their views on feedback from EEOC on these reports. Though MD-713 and MD-714 have been superseded, respondents’ views on the usefulness of EEOC feedback are not invalid. 6. EEOC’s statement about the professional, administrative, clerical, other white-collar and blue-collar (PATCOB) categories was taken from its guidance “Frequently Asked Questions About Management Directive- 715,” wherein EEOC said “The EEOC determined that the PATCOB categories are outdated, overly broad and too imprecise to allow the level of analysis desired.” In that same guidance, EEOC also said it adopted the same nine occupational categories for use in analyzing the federal workforce to conform with occupational categories on the EEO-1 report used by private employees in reporting information to EEOC in order to provide more useful information and facilitate comparisons between the federal and private sectors. We have modified the report to reflect this. 7. We agree that MD-715 requires that agencies gather and analyze data on applicants’ race, national origin, gender, and disabilities and provides a form for reporting the data gathered. However, in its instructions, EEOC did not provide guidance to agencies on how they should collect such data from applicants, which can only be collected voluntarily, or provide a form that agencies could use to request information from applicants. At the time of our review, no written guidance had been issued in this regard. As we state in our report, EEOC provided verbal guidance when requested by individual agencies. 8. This phrase “policy inconsistencies and disagreements” appears in the summary of the recommendations in the Results in Brief section of the report. The inconsistencies and disagreements are discussed in the report. These include inconsistencies between EEOC and OPM in how federal occupations are categorized for analytical purposes and disagreement on the need and authority to collect race and national origin data from applicants for employment. 9. EEOC commented that further information is needed with regard to our discussion about the occupational categories and applicant flow data. This discussion is intended to illustrate the existence of policy disagreements and differences between EEOC and OPM. The comments to which EEOC refer were made to us by OPM, and were explicitly attributed to OPM in our report. That these differences exist further illustrates the lack of coordination and collaboration between EEOC and OPM, and they are among the issues we recommend that the two agencies resolve.

We clarified the report to include a reference to the Uniform Guidelines on Employee Selection Procedures. 10. EEOC’s discussion of the technical assistance it provides does not directly address the findings in our report that, as of the time of our survey in the fall of 2004, some EEO and human capital managers did not consider EEO guidance to be useful, and a substantial number did not consider EEOC feedback to be useful.

EEOC’s Strategic Plan for Fiscal Year 2004-2009 states that as a means of assessing its performance, the agency will survey federal agency leadership to assess how EEOC's evaluations enable agencies to improve their EEO programs. This survey, when it is done, will be one means of providing EEOC with more current and comprehensive information on agency views concerning the effectiveness of its guidance and feedback. 11. The fiscal year 2004 data were used to describe the proportion of the federal workforce employed at the agencies at the time of our survey.

Comments from the Office of Personnel Management

The following are GAO’s comments on OPM’s letter dated April 21, 2006.

GAO Comments

1. We are not recommending that OPM go beyond its statutory authority and do not assume areas of overlap to be dysfunctional and unintended. Our recommendations are intended to help EEOC and OPM develop means to cooperate and collaborate in gathering information from agencies to identify opportunities to reduce the administrative requirements on agencies while satisfying existing EEO framework requirements. 2. We neither recommend that EEOC and OPM merge into a collective approach nor recommend that Congress require EEOC and OPM to adopt the recommendations we make in this report. We recommended that Congress require EEOC and OPM to report annually on actions taken or planned to increase coordination and communications with each other, streamline like requirements and resolve inconsistencies where appropriate, and improve guidance and feedback to agencies. 3. We acknowledge in our report that there are differences in EEOC’s and OPM’s responsibilities. In the draft provided to OPM for its comment, we state that OPM’s mission is to build a high-quality and diverse federal workforce and that under title 5 of the U.S. Code, OPM is responsible for executing, administering, and enforcing civil service laws and regulations in the executive branch, including the merit system principles that require fair and equitable treatment and equal opportunity and prohibit discrimination in all aspects of federal employment. The differences in EEOC’s and OPM’s responsibilities, however, should not preclude the two agencies from exploring, and taking advantage of, opportunities for coordination and cooperation in areas of common interest in the oversight of EEO in federal agencies.

4.

In our discussion of duplication of efforts, we were mindful of the legal distinctions between the various components of the EEO framework. See comment 3. 5. OPM expressed concern over use of the phrase “affirmative employment,” stating that the phrase may be misunderstood as relating to past EEO programs that have come under criticism and are the subject of ongoing litigation involving allegations of improper preferential treatment. We are aware of case law that has addressed federal EEO policies or practices and the issue of improper preferential treatment, as well as the ongoing litigation involving allegations of preferential treatment related to affirmative employment plans which date back to superseded management directives issued by EEOC. However, under the federal antidiscrimination statutes, the federal sector remains obligated to go beyond merely addressing complaints of alleged discrimination—to take positive (affirmative) steps to ensure EEO. It is this federal sector obligation to which we refer when we use the phrase “affirmative employment.” Further, OPM expresses concern about our reference to “workforce diversity.” We do not believe our use of the term “workforce diversity” is unique or inconsistent with OPM’s broad policies in the area. Rather, as our definition clearly provides, workforce diversity is a very broad concept and is not limited to recognizing the differences protected from discrimination by statute. 6. We have added a footnote to page 1 referring readers to the definition later in the report. 7. We have modified the report in line with OPM’s comment. 8. Please see comment 5 above regarding our use of the term “affirmative employment.” While OPM specifically objects to our characterization of MD-715 as an affirmative employment program, EEOC, in its comments, raised no objections to our use of this phrase as it relates to MD-715, or otherwise. 9. The statements referred to by OPM are the comments of agency EEO and human capital officials who filled out our survey. They are intended to illustrate the survey results. We did not independently evaluate the validity of the statements made in the comments, and they are not presented as facts or as findings. 10. We have made a change in accordance with OPM’s comment. 11. We understand that OPM and EEOC do not carry out identical reviews; however, workforce diversity issues share a common foundation with EEO issues, which in our view creates the opportunity for cooperation and coordination in oversight. It is important that staff performing work in these areas have an awareness of efforts of the other agency so that their individual and collective efforts could be more efficient. 12. We have changed the wording in accordance with OPM’s comment. 13. We have changed table 1 in accordance with OPM’s comment. 14. Executive Order No. 13171 mandates that “the head of each executive department and agency shall establish and maintain a program for the recruitment and career development of Hispanics in Federal employment.” In the Fifth Annual Report to the President on Hispanic Employment in the Federal Government, dated February 16, 2006, OPM said it asked federal agencies to identify human capital practices they found effective in recruiting Hispanics. 15. We have modified the discussion of the PMA in the report to clarify our source, in accordance with OPM’s comments. (We are referring to the scorecard the Office of Management and Budget (OMB) uses to assess agencies’ implementation of the PMA, commonly referred to as the “PMA scorecard” that contains the standard of reducing underrepresentation and sustaining workforce diversity.) 16. We have changed the title of table 2 in accordance with OPM’s comments. With regard to OPM’s point that the combination of “some, little, or no extent” seems broad, our methodology specialists have advised that collapsing “some extent” with “little or no extent” is a common practice. We have clarified this in appendix I. 17. The reference to “common features” was part of the two survey questions on whether any two of the specific requirements listed were in fact similar or redundant, and refers to those requirements.

While it is true that OPM now supplies agencies with Central Personnel Data File (CPDF) workforce data for their FEORP reports, agencies are still obligated to analyze these data to assess their workforces under FEORP requirements and respond to OPM’s requests for information. 18. As stated in our report, we were informed by agency EEO and human capital managers that they have to make separate efforts for each reporting requirement and consider this a significant burden. OPM and EEOC, in their roles as leadership agencies, should work together to understand how their collective requirements affect agencies and explore how administrative burdens on agencies could be reduced. 19. We have modified the report to more fully explain EEOC’s requirements as they relate to OMB’s revised standards for race and ethnicity classification. 20. We have removed the comment which cited the categories which have since been revised. 21. We have modified the report in accordance with OPM’s comment. 22. We have modified the report in accordance with OPM’s comment. 23. We have added more specific information concerning the NPR’s recommendations to the report. 24. We have modified the report to attribute the comment directly to the NPR. 25. We have modified our discussion of the handbook to reflect OPM’s comment. 26. We understood OPM’s comments about changing URLs, but believe that it is more convenient for Web users to be able to go directly to the relevant EEOC page than to go to a home page and search for needed information. We believe that necessary changes in the links can be done by coordination between OPM and EEOC Web managers. 27. We do not believe that EEOC’s and OPM’s responsibilities are so different that these agencies could not explore the opportunity to conduct joint oversight reviews, which may not necessarily entail doing all audit work jointly. We also do not believe that such joint efforts would, in and of themselves, compromise the confidentiality of OPM’s oversight work. Moreover, joint efforts would involve both EEO and human capital staff at agencies and, in this way, could help foster collaboration between agency EEO and human capital staff. 28. In our report, we counted as responding positively to EEOC or OPM guidance and feedback only those respondents who answered “useful” or “very useful” to the relevant questions. We regarded “somewhat useful” as a response that did not indicate satisfaction with EEOC or OPM guidance and feedback. 29. We have modified our presentation of the results of the question to use whole numbers rather than percentages.

GAO Contact and Staff Acknowledgments

GAO Contact

Acknowledgments

In addition to the contact named above, Belva M. Martin, Assistant Director; Steven J. Berke; Karin K. Fangman; Anthony P. Lofaro; Anthony Patterson; Amy Rosewarne; Samuel H. Scrutchins; Gregory H. Wilmoth; and Monica L. Wolford made major contributions to this report.