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Report to the Ranking Minority Member, Committee on Homeland Security
and Governmental Affairs, U.S. Senate:
June 2006:
equal employment opportunity:
Improved Coordination Needed between EEOC and OPM in Leading Federal
Workplace EEO:
GAO-06-214:
GAO Highlights:
Highlights of GAO-06-214, a report to the Ranking Minority Member,
Committee on Homeland Security and Governmental Affairs, U.S. Senate.
Why GAO Did This Study:
In April 2005 GAO reported on the EEO policy framework in the federal
workplace and the roles of EEOC and OPM. This report, in response to a
congressional request, provides information on (1) federal agency EEO
and human capital managers’ views of the EEO framework requirements;
(2) their views on the usefulness of guidance and feedback from EEOC
and OPM concerning these requirements;
and (3) how and to what extent EEOC and OPM coordinate in developing
policy, providing guidance, and exercising oversight.
What GAO Found:
EEO and human capital officials in federal agencies we surveyed said
that some requirements of the EEO framework contribute more than others
to achieving EEO, affirmative employment, and workforce diversity, and
in influencing human capital policies, practices, and strategic
planning. They also said that some requirements are very similar or
redundant, such as EEOC’s affirmative employment program and OPM’s
program for recruiting minorities and women. This creates duplication
of effort as agencies sometimes have to submit the same information in
different reports to EEOC and OPM. Further, the officials said they
experienced added administrative burden because of inconsistent
requirements.
The officials also said that guidance from EEOC on EEO, affirmative
employment, and workforce diversity issues was more frequent and more
useful than that from OPM. Some officials questioned the usefulness of
feedback from EEOC and OPM on their agencies’ performance or submitted
reports. Less than half reported that the feedback was useful or very
useful and a substantial number of respondents reported that they
received no feedback from OPM. In addition, EEO and human capital
officials expressed the strong view that both OPM and EEOC could be
doing more to help their agencies.
We found little evidence of coordination at the operating level between
EEOC and OPM in developing policy, providing guidance, and exercising
oversight, despite overlapping responsibilities in federal workplace
EEO. For example, EEOC and OPM officials do not routinely review
reports that the other agency receives from federal agencies, even
though those reports deal with similar matters. In addition, EEOC and
OPM officials do not coordinate with each other when conducting on-site
reviews of EEO-related matters at agencies. Good management practice as
well as federal statute and executive order call for coordination, and
not doing so results in lost opportunity to realize consistency,
efficiency, and public value in EEO policy making and oversight. The
Office of Management and Budget made a recommendation to OPM in 2005
that it develop a regular/formal working relationship with EEOC with
respect to those programs where it shares oversight responsibility with
EEOC in order to improve overall government efficiency. Although EEOC
officials acknowledged a need to coordinate at the operating level and
to develop an institutional coordination process, OPM officials
suggested that coordination need not be institutionalized.
What GAO Recommends:
GAO recommends that EEOC and OPM regularly coordinate in carrying out
their responsibilities under the EEO framework and seek opportunities
for streamlining like reporting requirements. Congress should require
OPM and EEOC to annually provide a joint statement of actions taken to
implement GAO’s recommendations. EEOC and OPM both acknowledged that
their collaborative efforts could be strengthened but took exception to
the recommendation to streamline requirements and disagreed with
certain statements within the report. GAO continues to believe that
exploring opportunities to streamline requirements is important for
government effectiveness and efficiency.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-214].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact George H. Stalcup at
(202) 512-9490 or stalcupg@gao.gov.
[End of Section]
Contents:
Letter:
Results in Brief:
Background:
Survey Respondents View Certain Requirements as Contributing Most to
EEO but See Redundancies and Differing Reporting Requirements as
Creating Administrative Burden:
Agencies Are More Satisfied with Guidance and Feedback from EEOC Than
with That from OPM and Believe Both Could Do More:
Limited Coordination between EEOC and OPM Limits Efficiency:
Conclusions:
Recommendations for Executive Action:
Matter for Congressional Consideration:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: The Framework for EEO in the Federal Workplace:
Appendix III: Excerpts from EEO Leadership Survey Questionnaire and
Summary Results:
Appendix IV: Agencies from Which Respondents Returned the EEO
Leadership Survey Questionnaire:
Appendix V: Comments from the Equal Employment Opportunity Commission:
Appendix VI: Comments from the Office of Personnel Management:
Appendix VII: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Selected Requirements on Federal Agencies within the EEO
Framework and Central Leadership Agency Oversight Responsibility:
Table 2: Survey Respondents' Answers regarding the Extent to Which
Various Policies and Requirements Contribute to Ensuring EEO and
Achieving Affirmative Employment and Workforce Diversity in Their
Agencies (Number and Percentage of Respondents):
Table 3: Survey Respondents' Perceptions of the Extent of Helpfulness
of EEOC and OPM in Ensuring EEO in the Workplace and Achieving
Affirmative Employment or Workforce Diversity (Number and Percentage of
Respondents):
Figures:
Figure 1: Definitions of EEO, Affirmative Employment, and Workforce
Diversity:
Figure 2: Selected Comments from Interviews with EEO Officials about
the PMA Scorecard Standard:
Figure 3: Selected Comments on Similarities and Redundancies in EEO-
Related Programs and Requirements:
Figure 4: Selected Comments on EEOC and OPM Reporting Requirements:
Figure 5: Selected Comments on How EEOC and OPM Can Do More to Help
Agencies Ensure EEO in the Workplace and Achieve Affirmative Employment
or Workforce Diversity:
Figure 6: Survey Respondents' Perceptions of the Usefulness of EEOC and
OPM Guidance on EEO, in Various Forms (Number and Percentage of
Respondents):
Figure 7: Survey Respondents' Perceptions of the Usefulness of EEOC and
OPM Feedback on Their Department/Agency's Performance or Contents of
Reports or Documents Submitted (Number and Percentage of Respondents):
Figure 8: Selected Comments on EEOC and OPM Guidance and Feedback:
Abbreviations:
CPDF: Central Personnel Data File:
CLF: civilian labor force:
CSRA: Civil Service Reform Act of 1978:
DVAAP: Disabled Veterans Affirmative Action Program:
EEO: equal employment opportunity:
EEOC: Equal Employment Opportunity Commission:
EHRI: Enterprise Human Resources Integration:
FEORP: Federal Equal Opportunity Recruitment Program:
FLRA: Federal Labor Relations Authority:
HCAAF: Human Capital Accountability and Assessment Framework:
MD: Management Directive:
MSPB: Merit Systems Protection Board:
No FEAR: Notification and Federal Employee Antidiscrimination and
Retaliation Act:
NPR: National Partnership for Reinventing Government:
OFCCP: Office of Federal Contract Compliance Programs:
OMB: Office of Management and Budget:
OPM: Office of Personnel Management:
OSC: Office of Special Counsel:
PART: Program Assessment Rating Tool:
PATCOB: professional, administrative, technical, clerical, other white-
collar, and blue-collar:
PMA: President's Management Agenda:
Letter:
June 16, 2006:
The Honorable Joseph I. Lieberman:
Ranking Minority Member:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
Dear Senator Lieberman:
The federal government has a policy to provide a workplace for its
employees that is fair, equitable, and free from discrimination and
retaliation. To help achieve this policy, the federal government has
created a framework of statutes, policies, regulations, and guidance in
order to prohibit discrimination, ensure equal employment opportunity
(EEO), and value workforce diversity. In April 2005, in response to
your request, we reported on the EEO policy framework[Footnote 1] under
which (1) certain personnel practices are prohibited, including
unlawful discrimination based on race, color, religion, gender,
national origin, age, and disability; (2) avenues of redress are
offered when discrimination and retaliation have been alleged;[Footnote
2] and (3) affirmative employment and minority recruitment programs are
required to ensure EEO in the federal workforce.[Footnote 3]
Within the EEO framework, federal agencies are responsible for
providing for a fair and nondiscriminatory workplace. The Equal
Employment Opportunity Commission (EEOC) and the Office of Personnel
Management (OPM) play important roles in fostering a fair, equitable,
and inclusive workplace at federal agencies through their leadership
and oversight.[Footnote 4] EEOC is responsible for the enforcement of
antidiscrimination laws and oversight of federal agency EEO programs,
and OPM is responsible for ensuring that federal agencies adhere to
federal merit system principles, which include nondiscrimination. In
carrying out their responsibilities, both EEOC and OPM issue
regulations, directives, and guidance that supplement the EEO framework
and establish requirements for agencies, oversee agencies' performance
in meeting framework requirements, and provide feedback to agencies.
EEOC has the additional responsibility of providing leadership and
coordination of federal EEO efforts in order to avoid conflict,
competition, duplication, and inconsistency.
During the course of our review that led to our April 2005 EEO
framework report,[Footnote 5] we heard from EEO and human capital
officials at selected agencies about similarities and redundancies in
EEO-related requirements and concerns about the usefulness of guidance
and feedback received from those agencies. In response to your request
and to better understand these and other issues, we surveyed EEO and
human capital officials in the executive branch to determine their
views on (1) the requirements dealing with EEO and workforce diversity
and the extent to which the requirements contribute to ensuring EEO and
diversity in the workplace and (2) the usefulness of guidance and
feedback they receive from EEOC and OPM concerning these requirements.
In addition, we examined how and to what extent EEOC and OPM coordinate
with each other in developing policy, providing guidance, and
exercising oversight of federal line agencies.[Footnote 6]
To accomplish our objectives, we sent separate surveys to the EEO/civil
rights directors and the chief human capital officers/human capital
directors at the 45 executive branch agencies (other than the United
States Postal Service and intelligence agencies) with 500[Footnote 7]
or more employees that are required to file annual reports with EEOC on
their affirmative employment program and that also file annual reports
with OPM on their Federal Equal Opportunity Recruitment Program
(FEORP). Collectively, the 45 agencies employed 97 percent of the
nonpostal federal workforce as of September 30, 2004. Of the 90
officials to whom we sent the survey, 83 officials or their designees
(92.2 percent) responded from October through December 2004. We
received a response from either an EEO or human capital official at all
45 agencies, and from both at 38 agencies. Prior to the survey, we also
interviewed EEO and human capital officials at 6 of these 45 agencies.
In addition, we reviewed statutes, executive orders, and other
executive policies that form the EEO framework as well as EEOC and OPM
requirements placed on agencies and compared them to each other. Agency
officials expressed their views, through both the survey and
interviews, about the extent to which the different framework
requirements contribute to EEO, the extent of redundancy between EEO-
related requirements and the duplication of effort this causes, the
burdens created by EEOC's and OPM's differing policies on data-related
issues, and the usefulness of EEOC's and OPM's guidance and feedback.
We provide examples of agency officials' comments on these matters;
however, we did not independently evaluate the extent to which the
different requirements contribute toward EEO, the extent of redundancy
of EEO requirements, the merits of differing EEOC and OPM policies, or
the usefulness of guidance and feedback.
We discussed with EEOC and OPM how they coordinate with each other in
carrying out their roles and responsibilities within the EEO framework.
Since the application of EEO laws varies between the branches
(executive, legislative, and judicial) of the federal government, this
report focuses primarily on the EEO framework applicable to the
executive branch. We performed our work from May 2004 through February
2006 in accordance with generally accepted government auditing
standards. Further details on our objectives, scope, and methodology
are in appendix I.
Results in Brief:
EEO and human capital officials in federal agencies who responded to
our survey viewed (1) EEOC's affirmative employment program
requirements and standards, (2) the executive order requiring
procedures for providing reasonable accommodation to individuals with
disabilities, and (3) the President's Management Agenda (PMA) scorecard
standard on underrepresentation and workforce diversity as the
framework elements contributing the most to achieving EEO, affirmative
employment, and workforce diversity, and as having the most influence
on human capital policies, practices, and strategic planning at their
agencies. In contrast, survey respondents identified (1) OPM's FEORP
regulations governing recruitment of underrepresented groups, (2) the
executive order on Hispanic employment, and (3) OPM's program for
employing disabled veterans as contributing less. About two-thirds of
survey respondents also noted that some requirements of the EEO
framework are very similar or redundant, such as the requirements under
EEOC's affirmative employment program; OPM's regulations for FEORP; and
the executive order on Hispanic employment, which OPM oversees. Some
agency EEO and human capital officials stated that redundant reporting
requirements create duplication of effort, with agencies sometimes
having to submit information on the same EEO efforts in different
reports to EEOC and OPM. They also said that inconsistent requirements
regarding analysis of workforce data create administrative burden.
When asked about the overall helpfulness of EEOC and OPM in their
efforts to ensure EEO in the workplace or to achieve affirmative
employment or workforce diversity objectives, about 56 percent of
survey respondents who had at least some interaction with EEOC said
EEOC was of only some, little, or no help, and 80 percent of survey
respondents who had at least some interaction with OPM had the same
view of OPM. The majority of these respondents said EEOC and OPM should
be doing more to help agencies. For example, one agency official said
that OPM should do more to share model agency recruiting practices and
assist with identifying effective recruitment sources, particularly for
people with disabilities, and that EEOC should do more in-depth
training and more sharing of model programs and make more suggestions
for improvement. 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, while about 79 percent of those respondents who had at least
some interaction with EEOC said guidance from EEOC personnel concerning
EEO, affirmative employment, and workforce diversity was useful or very
useful (which we considered a positive response), about 42 percent of
respondents who had at least some interaction with OPM said that
guidance from OPM personnel was useful or very useful. With regard to
feedback on their agency's performance or on 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.
Over 80 percent of respondents to our survey said more coordination
between EEOC and OPM would benefit their agencies. Some agency
officials said that the lack of such coordination resulted in added
requirements on them and detracted from the efficiency of their own
work. In our review, we found evidence that there was little
coordination between EEOC and OPM in developing policy, providing
guidance, and exercising oversight of federal agencies. For example,
when conducting oversight, EEOC and OPM officials do not routinely
review reports that the other agency receives from federal agencies,
even though those reports deal with similar matters. In addition, EEOC
and OPM officials conducting on-site reviews of EEO-related matters at
agencies do not coordinate with each other. Policy disagreements and a
lack of a mutual understanding of each other's authority, roles, and
responsibilities appear to have limited the extent to which the two
agencies work together to ensure that EEO is an integral part of human
capital management. This lack of coordination is contrary to government
policy calling for coordinated EEO effort and good management practice,
and results in lost opportunity to realize consistency, efficiency,
effectiveness, and public value in EEO policy making and oversight. The
Office of Management and Budget (OMB) recommended in 2005 a regular/
formal working relationship between the two agencies to improve
government efficiency in compliance reviews. In discussions with us,
while EEOC officials acknowledged a need to coordinate and develop a
formal mechanism to do so, OPM officials expressed a belief that
current ad hoc coordination arrangements are sufficient.
We recommend that EEOC and OPM (1) consistent with OMB's recent
recommendation, develop a means to communicate and coordinate on a
continuing basis in carrying out their responsibilities under the
federal workplace EEO framework; (2) explore opportunities to
consolidate and streamline like requirements within the framework,
including reporting requirements, and to resolve policy inconsistencies
and disagreements; and (3) determine from agency EEO and human capital
managers what additional guidance they need, how feedback can be more
useful, and what more they can do to help agencies provide workplaces
that are fair, equitable, and inclusive.
Because the lack of coordination between EEOC and OPM has been a long-
standing problem, Congress should require EEOC and OPM to include a
joint report to Congress on their progress in implementing our
recommendations as part of their respective annual EEO reporting.
We provided EEOC and OPM a draft of this report for their review and
comment and received written comments from the heads of both agencies.
EEOC and OPM both acknowledged that their collaborative efforts could
be strengthened. However, both took exception to the recommendation
related to exploring opportunities to consolidate and streamline
similar requirements. EEOC and OPM appear to have misinterpreted our
conclusions and recommendations as a call to consolidate EEO
requirements into a single agency, and noted that there were statutory
impediments to streamlining requirements. We are not recommending that
oversight for all EEO matters be consolidated into one agency, but
rather that the two agencies look for opportunities to consolidate
requirements and, where impediments exist, jointly make recommendations
to Congress or the executive branch. We clarified this point in the
report. Nonetheless, we believe that gaining a mutual understanding of
each other's authorities, roles, and responsibilities and determining
how those authorities could be exercised in a collaborative way could
provide immediate results in improving overall government efficiency in
oversight. OMB made a similar recommendation in 2005 to OPM to
collaborate with EEOC with respect to those programs where it shares
oversight responsibility with EEOC.
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.[Footnote 8] 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.[Footnote 9] 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.
Table 1: Selected Requirements on Federal Agencies within the EEO
Framework and Central Leadership Agency Oversight Responsibility:
Policy: Management Directive 715 providing policy guidance and
standards and reporting requirements for programs required under
section 717 of title VII of the Civil Rights Act of 1964 and section
501 of the Rehabilitation Act;
Implementation requirements for federal agencies: Develop affirmative
employment program plans for all employees and applicants (title VII)
and affirmative action program plans for the hiring, placement, and
advancement of individuals with disabilities (Rehabilitation Act);
Agency responsibility: EEOC: X;
Agency responsibility: OPM: [Empty].
Policy: Regulations implementing the Federal Equal Opportunity
Recruitment Program authorized by the Civil Service Reform Act of 1978;
Implementation requirements for federal agencies: Conduct a continuing
program of recruitment of underrepresented groups--minorities and
women--and develop equal opportunity recruiting plans;
Agency responsibility: EEOC: [Empty];
Agency responsibility: OPM: X.
Policy: Regulations implementing the Disabled Veterans Affirmative
Action Program authorized by the Vietnam Era Veterans' Readjustment
Assistance Act of 1974;
Implementation requirements for federal agencies: Have a program and
affirmative action program for the recruitment, employment, and
advancement of disabled veterans;
Agency responsibility: EEOC: [Empty];
Agency responsibility: OPM: X.
Policy: Notification and Federal Employee Antidiscrimination and
Retaliation Act;
Implementation requirements for federal agencies: Among other things,
notify employees of rights and protections, provide training, and
submit annual reports to Congress and EEOC.[A];
Agency responsibility: EEOC: X[B];
Agency responsibility: OPM: X[C].
Policy: Executive Order No. 13163, Increasing the Opportunity for
Individuals with Disabilities to Be Employed in the Federal Government;
Implementation requirements for federal agencies: Develop a plan for
increasing the opportunity for individuals with disabilities to be
employed by the federal government;
Agency responsibility: EEOC: [Empty];
Agency responsibility: OPM: X.
Policy: Executive Order No. 13164, Requiring Federal Agencies to
Establish Procedures to Facilitate the Provision of Reasonable
Accommodation;
Implementation requirements for federal agencies: Establish written
procedures for processing requests from individuals with disabilities
for reasonable accommodation;
Agency responsibility: EEOC: X;
Agency responsibility: OPM: [Empty].
Policy: Executive Order No. 13171, Hispanic Employment in the Federal
Government;
Implementation requirements for federal agencies: Have an ongoing
program for recruitment and career development of Hispanics in federal
employment, including developing recruiting plans;
Agency responsibility: EEOC: [Empty];
Agency responsibility: OPM: X.
Policy: President's Management Agenda[D];
Implementation requirements for federal agencies: Reduce
underrepresentation and establish processes to sustain workforce
diversity in accordance with PMA scorecard standard;
Agency responsibility: EEOC: [Empty];
Agency responsibility: OPM: X.
Policy: Human Capital Accountability and Assessment Framework[E];
Implementation requirements for federal agencies: Address human capital
standards, including those in areas related to diversity management;
Agency responsibility: EEOC: [Empty];
Agency responsibility: OPM: X.
Source: GAO.
[A] Regulations implementing provisions of the act relating to
notification, training, and annual reporting have not been finalized.
[B] EEOC receives annual reports agencies submit under title II,
Federal Employee Discrimination and Retaliation, and is responsible for
issuing rules under title III, EEO Complaint Data Disclosure.
[C] OPM is responsible for regulations implementing title II and for
reporting on best practices for disciplining employees who committed
unlawful discrimination or retaliation.
[D] The PMA, a strategy for improving the management and performance of
the federal government, 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.
[E] OPM developed the Human Capital Accountability and Assessment
Framework, providing suggested performance elements and measures to
guide agencies toward achieving the PMA human capital standards for
success.
[End of table]
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.
Figure 1: Definitions of EEO, Affirmative Employment, and Workforce
Diversity:
EEO is the policy embodied in law that requires that employment actions
be free from prohibited discrimination, including discrimination on the
basis of race, color, religion, gender, national origin, age,
disability, and retaliation for filing discrimination claims or other
protected activity;
Affirmative employment is 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 EEOC and OPM;
Workforce diversity indicates the extent to which people in a workforce
are similar and different from one another, including characteristics
protected by law, that is, race, ethnicity, disability, and gender.[A]
Workforce diversity may also take into account other factors, such as
background, education, work roles, and personality.b.
Source: GAO.
[A] See GAO, Diversity Management: Expert-Identified Leading Practices
and Agency Examples, GAO-05-90 (Washington, D.C.: Jan. 14, 2005), for a
discussion on managing workforce diversity.
[B] EEOC's roles and responsibilities are limited in scope to those
groups protected from discrimination by statute.
[End of Figure]
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.[Footnote 10]
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[Footnote
11] 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.
Table 2: Survey Respondents' Answers regarding the Extent to Which
Various Policies and Requirements Contribute to Ensuring EEO and
Achieving Affirmative Employment and Workforce Diversity in Their
Agencies (Number and Percentage of Respondents):
Policy/requirement: MD-715 (n=79);
Great/very great extent: 20 (25.2%);
Moderate extent: 21 (26.6%);
Some, little or no extent: 22 (27.9%);
Don't know: 16 (20.3%).
Policy/requirement: FEORP (n=80);
Great/very great extent: 12 (15.0%);
Moderate extent: 20 (25.0%);
Some, little or no extent: 46 (57.5%);
Don't know: 2 (2.5%).
Policy/requirement: DVAAP (n=80);
Great/very great extent: 11 (13.8%);
Moderate extent: 20 (25.0%);
Some, little or no extent: 43 (53.8%);
Don't know: 6 (7.5%).
Policy/requirement: No FEAR Act (n=79);
Great/very great extent: 8 (10.1%);
Moderate extent: 25 (31.7%);
Some, little or no extent: 37 (46.8%);
Don't know: 9 (11.4%).
Policy/requirement: Executive Order No. 13163, employment of persons
with disabilities (n=80);
Great/very great extent: 15 (18.8%);
Moderate extent: 27 (33.8%);
Some, little or no extent: 34 (42.5%);
Don't know: 4 (5.0%).
Policy/requirement: Executive Order No. 13164, providing reasonable
accommodation for employees with disabilities (n=80);
Great/very great extent: 32 (40.0%);
Moderate extent: 27 (33.8%);
Some, little or no extent: 19 (23.8%);
Don't know: 2 (2.5%).
Policy/requirement: Executive Order No. 13171, Hispanic employment
initiative (n=79);
Great/very great extent: 14 (17.7%);
Moderate extent: 21 (26.6%);
Some, little or no extent: 39 (49.4%);
Don't know: 5 (6.3%).
Policy/requirement: PMA scorecard standard on underrepresentation and
workforce diversity (n=80);
Great/very great extent: 19 (23.8%);
Moderate extent: 18 (22.5%);
Some, little or no extent: 24 (30.0%);
Don't know: 19 (23.8%).
Policy/requirement: HCAAF performance standards (n=79);
Great/very great extent: 12 (15.2%);
Moderate extent: 19 (24.1%);
Some, little or no extent: 25 (31.7%);
Don't know: 23 (29.1%).
Source: GAO survey results.
[End of table]
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.
Figure 2: Selected Comments from Interviews with EEO Officials about
the PMA Scorecard Standard:
...the PMA is a driving force on diversity issues, supplanting any
influence the FEORP and [EEOC] reports had … there is no real
accountability to EEOC for the [affirmative employment program] while
there is a definite "hammer" with the PMA. Director of management
services, and director of EEO, cabinet department;
...top federal agency and departmental management [are] not going to
pay attention to issues outside their usual interests, such as
EEO/diversity, without an outside agency coming down on them. The PMA
and its enforcement by OMB and OPM in the human capital sector
definitely seems to be having this effect...Attorney-advisor, office of
civil rights, cabinet department.
Source: GAO.
[End of figure]
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,[Footnote 12] 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.[Footnote 13] 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.[Footnote 14]
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,[Footnote 15] 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.[Footnote 16] 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)[Footnote 17] and MD-714
(on minorities and women),[Footnote 18] 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.
Figure 3: Selected Comments on Similarities and Redundancies in EEO-
Related Programs and Requirements:
...there is overlap between the FEORP and [EEOC requirements] as both
examine workforce diversity and speak to recruitment and outreach
strategies … There is other overlap between the [EEOC] requirements for
persons with disabilities and the executive order dealing with persons
with disabilities … it would be better for EEOC and OPM to have one
centralized report that … would eliminate overlap and inconsistency.
Director of management services, and director of EEO, cabinet
department;
There is significant overlap in program areas of OPM and EEO[C]
particularly in affirmative action, reasonable accommodation,
diversity, and equal employment opportunity. Since these programs/
initiatives share many of the same goals and objectives, closer
coordination to eliminate duplicative reporting and to maximize ideas,
guidance, and resources would be beneficial. Director of human
resources, independent agency;
[EEOC and OPM should] resolve FEORP and MD-715 into one program.
Assistant secretary for EEO, cabinet department;
...someone needs to examine the requirements from Alpha to Omega to
determine what is being asked for and, because many of the reports are
asking for the same things, determine if there can be a consolidation
of the requirements into two or three reports … FEORP is one report
that can go away. Director of human resources, cabinet department.
Source: GAO.
[End of figure]
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.[Footnote 19] 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.[Footnote
20] 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.[Footnote 21] 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.
Figure 4: Selected Comments on EEOC and OPM Reporting Requirements:
...the reports [EEOC and OPM] require are, in many cases, redundant and
should be streamlined. Assistant secretary for EEO, cabinet department;
...there are redundant reporting requirements in the FEORP and in
[reports required by EEOC] … it does not make sense to have two
agencies collecting the same information on the same issues. Deputy
assistant secretary for human resources, cabinet department;
EEOC and OPM gather [the] same information in conflicting formats.
There should be more of a team approach when requesting information
from agencies.[This] becomes a problem when we are tasked to provide
info for a new requirement (such as MD 715) and reporting needs are so
different. Director, office of EEO, cabinet department;
If these two worked together better, we could make significant
progress. The two agencies use different comparative data. OPM lags in
directing agencies to update data systems to capture RNO/G codes and
training instances. EEO director, component of cabinet department.
Source: GAO.
[End of figure]
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.[Footnote 22] 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.)
Table 3: Survey Respondents' Perceptions of the Extent of Helpfulness
of EEOC and OPM in Ensuring EEO in the Workplace and Achieving
Affirmative Employment or Workforce Diversity (Number and Percentage of
Respondents):
Agency: EEOC (n=48);
Very great: 5 (10.4%);
Great: 3 (6.3%);
Moderate: 12 (25.0%);
Some: 12 (25.0%);
Little or no: 15 (31.3%);
Don't know/not applicable: 1 (2.1%).
Agency: OPM (n=45);
Very great: 0 (0.0%);
Great: 1 (2.2%);
Moderate: 6 (13.3%);
Some: 15 (33.3%);
Little or no: 21 (46.7%);
Don't know/not applicable: 2 (4.4%).
Source: GAO survey results.
[End of table]
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.)
Figure 5: Selected Comments on How EEOC and OPM Can Do More to Help
Agencies Ensure EEO in the Workplace and Achieve Affirmative Employment
or Workforce Diversity:
EEOC and other federal agencies have extensive knowledge and experience
in many areas that should be shared to rethink strategic approaches to
equality of opportunity and diversity. From my own experience, it would
be helpful for EEOC to consider developing proactive, preventative
guidances. MD-715 is a good start, but more comprehensive, focused
guidance that addresses one major area annually, such as measuring
accountability through qualitative benchmarks is needed. I believe that
such guidance would help to create an environment for effective and
lasting positive accomplishments. EEOC should be held accountable for
developing such guidance. EEO director, independent agency;
It would be helpful to get more examples from OPM about how other
agencies are doing, as well as more information about federal human
resources contractors. Associate director for human capital planning,
cabinet department;
[OPM should do] more on sharing benchmarks/model agencies and their
recruitment/retention efforts … assistance with identifying effective
recruitment sources, particularly for individuals with disabilities.
EEO officer, component agency of cabinet department;
EEOC should do more in-depth training on conducting barrier analyses,
more sharing of model programs, suggestions on ways to improve, and
establishment of benchmarks. EEO official, component of cabinet
department;
EEOC should work in concert with OPM in developing standardized
training for diversity competencies. Deputy assistant secretary for
EEO, cabinet department.
Source: GAO.
[End of figure]
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.
Figure 6: Survey Respondents' Perceptions of the Usefulness of EEOC and
OPM Guidance on EEO, in Various Forms (Number and Percentage of
Respondents):
[See PDF for image]
[End of figure]
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 7: Survey Respondents' Perceptions of the Usefulness of EEOC and
OPM Feedback on Their Department/Agency's Performance or Contents of
Reports or Documents Submitted (Number and Percentage of Respondents):
[See PDF for image]
[A] MD-713, Affirmative Action for Hiring, Placement, and Advancement
of Individuals with Disabilities, and MD-714, Hiring, Placement, and
Advancement of Minorities and Women, were superseded by MD-715 but were
still operational during the early part of the survey period.
[End of figure]
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.
Figure 8: Selected Comments on EEOC and OPM Guidance and Feedback:
OPM has not articulated a lot of its guidance and seems to have a
difficult time explaining the guidance that it does have. OPM does not
provide feedback on the FEORP submissions. Acting director of workforce
planning, employment and development, cabinet department;
The guidance in MD-715 does not go far enough to assist agencies. EEO
director, component of cabinet department;
[We] have always been able to get support from EEOC;
it is a very positive relationship. [T]here is not much guidance there,
but [we] receive annual updates and the provision of Title VII training
to managers. [An agency EEO official] interfaces regularly with [EEOC
staff]. Assistant director for affirmative employment and diversity,
cabinet department;
[T]he lack of accountability to OPM with regard to the FEORP is
evidenced by the fact that the 2003 FEORP was not submitted (due to
staff limitations and giving priority to the PMA) yet [we] did not hear
from OPM. [We have no] knowledge of OPM providing feedback on the FEORP
or other reports that are submitted to OPM. Director of human
resources, cabinet department;
EEOC provides limited feedback and provides only general advice … As
for what to do about how to increase the representation of persons with
targeted disabilities, EEOC provided general advice but no specific
tips. EEO director, cabinet department;
[We] have never gotten feedback from OPM on FEORP or DVAAP submissions.
[We] did get feedback from EEOC on the [affirmative employment]
submission back in 2001, as a new [affirmative employment] plan was
being developed at about that time. Never in any of its feedback on
[affirmative employment] did EEOC discuss resources, even though the
regulations and the new and old EEOC directives do call for sufficient
resources to maintain an [affirmative employment] program. Office of
civil rights director, cabinet department;
[A senior OPM official] has been interested in [our] work [on the
Hispanic Employment Plan] and seemed positive about it, though there
has been no substantial feedback from OPM. Hispanic program manager,
cabinet department;
EEOC is always in a "we don't have staff mode." EEOC provides some
feedback on reasonable accommodation issues. Some subagencies may get
feedback on some things … and others do not. It would have been helpful
if everyone had gotten their feedback at once. EEO program director,
cabinet department.
Source: GAO.
[End of figure]
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:
In our survey of human capital and EEO managers at 45 federal agencies,
we found a strongly and widely expressed view that more coordination
between EEOC and OPM would help their agencies. Specifically, we asked
the following question concerning coordination between the five central
leadership 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.
One survey respondent in particular, the chief human capital officer of
a cabinet department, noted the potential benefits of EEOC/OPM
cooperation on the extent of cooperation between the human capital and
EEO staffs within line federal agencies:
"[OPM and EEOC] 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."
Another respondent, the EEO director of a federal commission, said the
following:
"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,[Footnote 23] 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,[Footnote 24]
and Executive Order No. 12067, Providing for Coordination of Federal
Equal Opportunity Programs.[Footnote 25] 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.[Footnote 26]
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.[Footnote 27] 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.[Footnote 28]
Clearly, these principles apply to EEOC's and OPM's roles within the
EEO framework.
The importance of collaboration between EEOC and OPM was recognized
over a decade ago by the NPR in its 1993 report From Red Tape to
Results: Creating a Government That Works Better and Costs
Less.[Footnote 29] It stated the following:
"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).[Footnote 30] 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.[Footnote 31] 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
responsibilities;
* 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
applicant data;
* 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
workforce diversity efforts;
* 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 [Hyperlink,http://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.
Sincerely yours,
Signed by:
George H. Stalcup:
Director, Strategic Issues:
[End of section]
Appendix I: 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.[Footnote 32] 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.
[End of section]
Appendix II: 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.[Footnote 33] 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.[Footnote 34] 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.[Footnote 35] 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.[Footnote 36] 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.[Footnote 37] 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.[Footnote 38] 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,[Footnote 39] 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,[Footnote 40] 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,[Footnote 41] 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),[Footnote 42] 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,[Footnote 43] 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.[Footnote 44]
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[Footnote 45] of minorities in the federal
workplace.[Footnote 46] 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.[Footnote 47] 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.[Footnote 48] 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.[Footnote 49] 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[Footnote 50] protects men
and women who perform substantially equal work in the same
establishment from sex-based wage discrimination. The Age
Discrimination in Employment Act,[Footnote 51] as amended, protects
individuals who are 40 years of age or older from age-based employment
discrimination.
[End of section]
Appendix III: Excerpts from EEO Leadership Survey Questionnaire and
Summary Results:
[See PDF for image]
[End of figure]
[End of section]
Appendix IV: Agencies from Which Respondents Returned the EEO
Leadership Survey Questionnaire:
Agency for International Development:
Broadcasting Board of Governors:
Commodity Futures Trading Commission:
Corporation for National Service:
Court Services and Offender Supervision Agency:
Defense Contract Audit Agency:
Defense Education Activity:
Defense Finance and Accounting Service:
Defense Information Service Agency:
Defense Inspector General:
Defense Logistics Agency:
Defense Threat Reduction Agency:
Department of Agriculture:
Department of the Air Force:
Department of the Army:
Department of Commerce:
Department of Education:
Department of Energy:
Department of Health and Human Services:
Department of Homeland Security:
Department of Housing and Urban Development:
Department of the Interior:
Department of Justice:
Department of Labor:
Department of the Navy:
Department of State:
Department of Transportation:
Department of the Treasury:
Department of Veterans Affairs:
Environmental Protection Agency:
Equal Employment Opportunity Commission:
Federal Communications Commission:
Federal Trade Commission:
General Services Administration:
National Aeronautics and Space Administration:
National Archives and Records Administration:
National Credit Union Administration:
National Labor Relations Board:
National Science Foundation:
Nuclear Regulatory Commission:
Office of the Secretary of Defense:
Office of Personnel Management:
Securities and Exchange Commission:
Small Business Administration:
Social Security Administration:
[End of section]
Appendix V: Comments from the Equal Employment Opportunity Commission:
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
U.S. Equal Employment Opportunity Commission:
Washington, D.C. 20507:
The Honorable David M. Walker:
Comptroller General of the United States:
United States Government Accountability Office:
Washington, D.C. 20548:
May 16, 2006:
Dear Mr. Walker:
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.
Sincerely,
Signed by:
Cari M. Dominguez:
Chair:
Attachment:
OFO Comments on the Draft GAO Leadership 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.
General Comments:
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[Footnote 52], as well as additional written feedback on 84
procedures that were subsequently resubmitted.
* Recently published Practical Advice fbr 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.htmi.
(p. 3).
Lastly, GAO uses workforce data on FY 2004 when FY 2005 data are now
available.
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.
[End of section]
Appendix VI: Comments from the Office of Personnel Management:
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
Office Of The Director:
United States Office Of Personnel Management:
Washington, DC 20415-1000:
April 21, 2006:
Mr. George H. Stalcup:
Director, Strategic Issues:
United States Government Accountability Office:
Washington, DC 20548:
Dear Mr. Stalcup:
Thank you for the opportunity to review and comment on Equal Employment
Opportunity: Improved Coordination Needed between EEOC and OPM in
Leading Federal Workforce EEO (GAO-06-214).
The Office of Personnel Management appreciates the interest in seeking
ways to make the Federal government more effective in its efforts to
develop a workforce that is drawn from all aspects of this diverse
Nation. We agree that there is room for improvement in light of the
recognized differences in responsibility and focus between OPM and the
Equal Employment Opportunity Commission. We have attached our general
and specific comments with this letter.
Please contact Robert Batson to coordinate OPM's further involvement
with this matter at 202-606-1000 or via email Robert. Batson@opm.gov.
Sincerely,
Signed by:
Linda M. Springer:
Director:
cc: Ms. Belva Martin:
OPM's Comments and Suggestions for Government Accountability Office
(GAO) Draft Report Entitled:
Equal Employment Opportunity Improved Coordination Needed between EEOC
and OPM in Leading Federal Workplace EEO:
SUMMARY:
OPM appreciates the opportunity to review and comment upon this draft
report. The report accurately notes that OPM and EEOC operate under
different authorities and have different focuses with regard to EEO and
merit principles. Some of these differences are appropriately reflected
in the policy differences between the two agencies. Nevertheless, the
bulk of the report seems to ignore these differences and suggests the
two agencies should coordinate even where the regulatory and statutory
authority for such coordination is questionable. OPM does agree with,
and will reinstate, the practice of consulting with EEOC as it prepares
the annual FEORP reports. With respect to other matters, OPM believes
the more appropriate approach is for OPM and the EFOC to continue to
coordinate on an as-needed basis. From OPM's perspective, this has
resulted in effective and cooperative interactions with the EEOC.
Moreover, this approach recognizes the differences between the agencies
while still supporting coordinated activities where appropriate.
GENERAL COMMENTS:
* In general, the report seems to be premised on the view that OPM has
the authority to go beyond the grant it received from Congress, to
request additional private information from individuals, modify
statutory reporting requirements in order to share protected processes
and information, and merge audit processes with the EEOC. This view
seems to assume that any areas of overlap are simply dysfunctional and
could not possibly have been intended, either by Congress, with respect
to overlapping statutory obligations, or the Chief Executive, with
respect to delegations through Executive orders and the like. OPM,
however, is not free to make such assumptions and modify obligations
unilaterally.
The report notes that OPM and EEOC have different focuses, but
nevertheless makes recommendations that the two agencies merge into a
collective approach, and further suggests - to Congress - that it
require the two agencies to adopt these recommendations. Compare page
10 (agencies' focuses) with page S (force coordination). It seems to
OPM that a formal requirement of coordination simply adds a layer of
complexity to a scheme that GAO complains already is duplicative and
overly complex.
On the other hand, the report does not acknowledge that OPM's
responsibilities related to EEO-related matters are only one part of
its Governmentwide responsibilities. We do not suggest that these
issues are not important, but the failure to recognize the substantive
differences in EEOC's and OPM's statutory and policy-making roles seems
to overlook the fact that at least some of the differences between the
agencies (and even the areas of overlap) are necessary, appropriate,
and intended by those who created these mandates.
* The discussion of duplication of efforts continues to assume that the
MD-715 is comparable to a statute, regulation, or Executive Order,
which is incorrect, and that all of these sources of authority can
readily be coordinated. In addition, MD-715 was issued several years
after E.O. 13171 and E.O. 13163 and many years after the FEORP statute.
OPM is not free to abandon its obligations under these authorities
simply because EEOC, working under different authorities, modifies its
own requests. Further, some steps have already begun in the direction
of coordination through EEOC's discussions with OPM as to ways in which
OPM's EHRI program can serve to lessen some of the new reporting
requirements agencies face under MD-715.
* We remain concerned that continued use of the phrase "affirmative
employment" throughout the report leads to confusion and
misunderstanding. This term and "workforce diversity" have established
historical (and plain language) connotations that will not easily be
dispelled. Although GAO notes that it has developed its own definitions
for the purposes of this report, we question why it is better to strain
to find an appropriate meaning for a term that has outlived its
usefulness (and has questionable continued legal vitality) than simply
to use a more appropriate term. In any event, GAO's unique definitions
do not appear until page 12, even though the terms themselves appear on
page 1 and throughout the report. As a consequence, the reader could
gain the inaccurate perception that OPM's objectives are more extensive
than allowed by law and that "workforce diversity" is narrower than
intended by OPM policy.
SPECIFIC COMMENTS:
Page 1, Penultimate line --"(3) affirmative employment and minority
recruitment programs are required to help bring about a diverse
workforce" This sentence presents a misleading and problematic
description of operative law. While it true that agencies are required
to ensure equal employment opportunity, and to include outreach to
minorities as part of a comprehensive recruitment program, statutes and
regulations need to be read in harmony with current case law, which
requires that agencies avoid coercive requirements or recruitment
programs focused exclusively on particular groups.
Page 3, 15` full paragraph, 1st sentence-MD-715 is not an affirmative
employment program, as that term has been historically used (nor is it
called an affirmative employment program by the EEOC), and the previous
MDs are obsolete, so it is not clear what report is being discussed. In
light of the fact that the EEOC's earlier MDs became the subject of
litigation (still pending) in the Federal district court, GAO's
continued use of the term "affirmative employment" in conjunction with
the new directive, MD-715, is particularly unfortunate. It would be
more accurate to refer to the MD-715 report as an "annual report" as it
is described later.
Page 4 - Not clear what value the anecdotal recollections serve in this
report because you acknowledge that independent evaluations have not
taken place. Some of the statements seem to reflect the lack of
knowledge of the reporter rather than a meaningful discussion of the
relevant issues. For example, on page 20, figure 3, the suggestion that
MD-715 and FEORP should be combined does not consider the different
authorities on which each is based or the different focus of the
reports. Moreover, all of the statistical reporting for FEORP is
completed by OPM, not the agencies, while the opposite is true for MD-
715. Thus, the reporting burdens on agencies are very different. OPM
suggests that GAO reconsider the relevance of the anecdotes from
agencies.
Page 5, lines 10 and 14, refers to "E.O. 13171 on Hispanic
underrepresentation." This is not an accurate characterization of the
full content of the Executive order, and in light of current
misperceptions about "under-representation" and whether it, in fact,
can even be established, scientifically, to exist, it would be
preferable to refer to the Executive order by its actual title. The
correct title is "E.O. 13171 Hispanic Employment in the Federal
Government."
Page 7, 6th line from the top - Sentence states "In addition, OPM and
EEOC officials conducting on-site reviews of EEO-related matters at
agencies do not coordinate with each other." This is an inaccurate
comparison because OPM does not conduct on-site compliance with EEOC's
reporting obligations. OPM reviews agencies' progress on diversity
issues, but does not review EEOC specific issues.
Page 10, first full paragraph, final sentence --states that "a key
focus for OPM is to assist agencies in creating diverse candidate pools
for federal positions and increasing representation of women,
minorities, and persons with disabilities in executive and management
positions and leadership feeder ranks." The reference to "increasing
representation" should be removed because it suggests a focus on
outcome that is constitutionally prohibited. Instead, OPM focuses on
assisting agencies with their recruitment efforts and improving access
to opportunities for employment and career advancement for all groups,
not specific statistical outcomes. We suggest GAO revise this sentence
to say "a key focus for OPM is to assist agencies in creating diverse
candidate pools, including women, minorities, persons with
disabilities, and veterans that can be used in making appointment to
the Federal service in executive and management positions and
leadership feeder ranks."
Page 11, Table 1, Row 4 - The No FEAR Act included responsibility for
OPM to conduct a comprehensive study, which will be done, in part
through the use of the annual reports that agencies submit to Congress
and other entities. OPM's role is not really oversight. OPM suggests
that GAO revise the heading to simply say "Responsibility" rather than
"Oversight Responsibility," then footnote the "X" to indicate that
OPM's role is to implement regulations and ultimately report on best
practices. The table also needs to make clear that EEOC's oversight, to
the extent it exists, is limited to Title III of the Act.
Page 11, Table 1, Row 7, the description of E.O. 13171 is a bit
inaccurate. OPM requires agencies to have a plan for recruitment and
career development of minorities and women, including Hispanics. The
Annual Hispanic Employment Report {issued in compliance with EO 13171)
provides effective human capital practices for creating a diverse
workforce drawn from all segments of society, as opposed to any
exclusive program for recruitment of Hispanics.
Page 11, Table 1, Row 8 - There is nothing in the President's
Management Agenda (see [Hyperlink,
http://www.whitehouse.gov/omb/budget/fy2002/mgmt.pdF] that requires
agencies to "[r]educe underrepresentation" or "sustain workforce
diversity" as indicated in this chart. And we don't believe any of the
guidance OPM supplies through its related Strategic Management of Human
Capital page does that either. The Human Capital Standards stress
maintaining an environment characterized by inclusiveness of individual
differences and responsive to the needs of diverse groups of employees.
* Page 13, note 10: See comments concerning PMA above.
Page 14, Table 2 - The summary combines EEO, affirmative employment and
workforce diversity, but the survey questions treated these as
alternatives - EEO, affirmative employment OR workforce diversity. It
is not clear whether this difference is just a typographical error or a
substantive change in analysis. If the latter, such a change in
analysis seems likely to affect the outcome and undercut the value of
the comparisons the table seeks to make. Also, the combination of
"some, little or no extent" seems broad and encompasses potentially
meaningful distinctions.
* Page 15, Selected Comments box -The perception of the PMA reported in
these comments seems to represent some confusion about the manner in
which it operates with respect to diversity.
Page 16, paragraph 1 --GAO adjudged that two government programs were
"very similar or redundant" if they shared "common features such as
developing plans, assessing progress, and preparing reports." It is
difficult to imagine a government program that does not require the
development of plans, assessment of progress and preparation of
reports. In addition, GAO ignores that the statistical reporting
requirements under FEORP are now fulfilled by OPM itself, using the
CPDF.
Page 17, paragraph 1 - The discussion is a bit misleading to the extent
that it suggests that analysis performed with respect to one reporting
requirement has to be re-done from scratch in order to fulfill a second
reporting requirement. Surely agencies find ways to consolidate these
efforts.
Page 20 Figure 3. Second quote refers to overlap by OPM and EEO in the
area of "affirmative action." Affirmative action is a remedial measure
now considered to be appropriate only in very limited and particular
contexts; it is not a "program" that either agency carries out. This is
another example of the questionable value of including these anecdotes
in the report.
Page 22 - It is simply incorrect to state that EEOC "required agencies
to report race and ethnicity data in conformance with the minimum
categories in OMB standards." The minimum requirement was that
employees have the opportunity to report both race and ethnicity. The
EEOC's form does not allow for both choices. Moreover, the repeated
suggestion (in this report and other reports) that OPM was simply
"slow" to make changes to the CPDF is neither justified, nor fair. As
we have previously informed GAO, OPM attempted to work with EEOC in a
coordinated fashion on this subject, and EEOC was to take the lead.
After OPM determined the limitations with the EEOC created categories,
that did not comply with OMB standards, however, OPM had to develop a
new structure that was consistent with what OMB required.
Page 24, Figure 4 - At least some of these comments seem outdated
because the survey took place before OPM had completed its revisions to
the race and ethnicity categories, but if GAO wishes to report on this
concern, it seems only fair to acknowledge that it has been addressed
to some degree.
Page 24, paragraph 1 2nd and 3rd line, "-EEOC and OPM could do more .
and achieve workforce diversity objectives by providing clearer
guidance . The use of the word "objectives" suggests impermissible
goals and quotas, so this word should be deleted.
Page 25, paragraph 1 Line 5 and 12 --The word "objectives" appear again
and should be deleted for the same reasons as noted above.
Page 25, Figure 5 --This is another example of the questionable value
of anecdotes in this report. Here the statement is --"It would be
helpful to get more examples from OPM about how other agencies are
doing, as well as more information about federal human resources
contractor." It is unclear what information the speaker is seeking or
how it is relevant to the purposes of this report.
Page 29, Selected Comments - We request removal of the quote regarding
a "senior OPM official" supposedly endorsing an agency Hispanic
Employment Plan, It is not clear what the context was or whether this
is an accurate characterization of what was actually said. The 4TH
quote, suggesting a cabinet department got away with failing to comply
with its statutory obligation under FEORP, is another example of
questionable anecdotes. It may be an isolated incident, the person
reporting the comment seems unaware of the possibility that OPM could
assess the failure to comply in a future audit, and, in any event, we
reported that, in the past two years, OPM has contacted agencies that
do not submit their FEORP reports to remind them of their
responsibilities under 5 CFR 720.
Page 33, paragraph 1 - It would be useful to summarize the NPR's
proposed actions to clarify which of those suggestions would be within
OPM's and EEOC's existing authorities and which would require
legislative changes.
Page 33, paragraph 2 Line 4 --"accomplishing equal opportunity and
affirmative employment goals. Use of the word "goals" here is
problematic because it could be read to mean actions that are
constitutionally prohibited. OPM suggests deleting this word.
Page 34, paragraph 1 - OPM ceased using the OPM handbook in or about
2003 and it is no longer available. In addition, OPM's oversight
process does not evaluate an agency's EEO program or compliance with an
EEOC-approved plan.
Page 35, 1st full paragraph --OPM recognizes that the FEORP statute
contemplated that OPM would consider EEOC guidance in formulating its
program and that the EEOC guidance calls for OPM to consult with EEOC
in issuing its annual report to Congress. The program office
responsible for FEORP will resume consulting with the EEOC as it
prepares the annual reports in the future.
Page 36, run-over paragraph - GAO seems to have misunderstood OPM's
comment regarding links to pages other than the EEOC's home page. OPM's
comment was not focused on the substantive information but rather on
the technical issue of changing URLs. If OPM links to the existing
URLs, for example, for "References and Research," and the EEOC changes
the location of this information on its site, the URL will (likely)
change and OPM's link will be bad. This causes frustration for users.
By connecting to the EEOC home page, which has a detailed index, the
user can always get to the correct URL.
Page 36, 5th line from the bottom-Sentence states "EEOC officials also
suggest that EEOC and OPM conduct joint oversight visits to agencies."
OPM believes that its oversight responsibilities are very different
from EEOC's responsibilities so joint visits will not be more efficient
or effective. In addition, conversations between OPM and the agency
undergoing an audit are treated as private, deliberative discussions,
so inserting a third-party entity could undercut the relevant
protections accorded to such conversations.
Page 61, Q.14 --GAO Highlights page, paragraph 2 states, "For example,
about 79 percent said that guidance from EEOC personnel on EEO issues
was useful or very useful;
42 percent said this from OPM." The response to Q.14, however, suggests
that almost 60% considered guidance from OPM on EO 13163, FEORP, DVAAP,
and EO 13171 "useful" or "somewhat useful". If you look at the results,
5% of the respondents stated that OPM guidance was "not at all useful"
and another 7% selected "not applicable". That:
means the vast majority of respondents think OPM guidance on these EEO
areas is useful. The way the report is written "42 percent said this
from OPM" (guidance) is misleading and should be corrected throughout
the report.
Page 69, Qs48a and 48b - It is unclear where the redundancy is
perceived based on the way the data is summarized here. The questions
ask for comparison but no actual comparison is reflected here. It is
important for the reader to be able to see which comparisons are at
issue here in order to more accurately evaluate the concerns. There
also seems to be a problem with "double counting" because the question
allows each respondent to fill in two answers for each of these
questions it inflates the count of responses except where the response
is negative, i.e. "none" or "don't know" in which case only one choice
is made. This creates a mathematical fallacy. The results are published
to the tenth of a point presumably as percentages, but a summation of
the results exceeds 100%. A summation even exceeds the number of
respondents so it is difficult to understand how such a question could
ever be expected to produce meaningful data. For such small numbers
here, only 83 respondents, whole number responses should be used. The
percentage relation further conceals the obfuscation.
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.
[End of section]
Appendix VII: GAO Contact and Staff Acknowledgments:
GAO Contact:
George H. Stalcup (202) 512-9490 or stalcupg@gao.gov:
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.
(450307):
FOOTNOTES
[1] GAO, Equal Employment Opportunity: The Policy Framework in the
Federal Workplace and the Roles of EEOC and OPM, GAO-05-195
(Washington, D.C.: Apr. 29, 2005).
[2] Federal employees also have legal protections against reprisal,
such as for "blowing the whistle" on waste, fraud, and abuse.
[3] See figure 1 for definitions of EEO, affirmative employment, and
workforce diversity.
[4] Although EEOC and OPM have primary responsibility for federal EEO
law and policy in the federal workplace, three other agencies--the
Office of Special Counsel, the Merit Systems Protection Board, and the
Federal Labor Relations Authority--also play a role in federal
workplace EEO. In our survey, and in this report, we refer to these
five agencies as the central leadership agencies.
[5] GAO-05-195.
[6] Consistent with our April 2005 report, this report focuses on
EEOC's affirmative employment program responsibilities within the EEO
framework. We previously reported on EEOC's roles and responsibilities
for establishing procedures for handling federal employees' allegations
of discrimination and providing for the adjudication of complaints and
hearing appeals. See GAO, Equal Employment Opportunity: Discrimination
Complaint Caseloads and Underlying Causes Require EEOC's Sustained
Attention, GAO/T-GGD-00-104 (Washington, D.C.: Mar. 29, 2000), and
Equal Employment Opportunity: Complaint Caseloads Rising, With Effects
of New Regulations on Future Trends Unclear, GAO/GGD-99-128
(Washington, D.C.: Aug. 16, 1999).
[7] 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.
[8] Exec. Order No. 11478, Equal Employment Opportunity in the Federal
Government, 34 Fed. Reg. 12,985 (Aug. 8, 1969), as amended.
[9] 5 U.S.C. § 1103(a)(5).
[10] OSC receives, investigates, and prosecutes allegations of
prohibited personnel practices, and certifies agencies' compliance to
meet the statutory obligation to inform their workforces about the
rights and remedies available to them under civil service laws. MSPB
adjudicates employee appeals of personnel actions and conducts studies
of the federal merit system to determine whether it is free from
prohibited personnel practices. FLRA provides leadership in
establishing policies and guidance relating to federal sector labor-
management relations and with resolving disputes under the Federal
Service Labor-Management Relations Statute.
[11] The PMA scorecard is used to assess agency performance in
implementing the PMA. Each quarter, OMB scores agencies' efforts in
implementing the PMA, and OPM evaluates the agencies on human capital.
[12] Exec. Order No. 13171, 65 Fed. Reg. 61,251 (Oct. 12, 2000).
[13] In addition to workforce statistics, which is a first step in
barrier analysis, EEOC's MD-715 instructions look to other information
sources, such as EEO complaint data, employee surveys, and exit
interview results, to identify areas where barriers may operate to
exclude certain groups.
[14] Section 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e-16;
Reorganization Plan No. 1 of 1978, issued pursuant to 5 U.S.C. § 901 et
seq;
Executive Order 11478;
and Section 501 of the Rehabilitation Act of 1973, as amended by Pub.
L. No. 99-506, 100 Stat. 1807, October 21, 1986.
[15] Exec. Order No. 13163, 65 Fed. Reg. 46,563 (July 26, 2000).
[16] National Partnership for Reinventing Government, From Red Tape to
Results: Creating a Government That Works Better and Cost Less
(Washington, D.C.: September 1993).
[17] EEOC Management Directive 713, Affirmative Action for Hiring,
Placement, and Advancement of Individuals with Handicaps, October 6,
1987.
[18] EEOC Management Directive 714, Instructions for the Development
and Submission of Federal Affirmative Employment Multi-Year Program
Plans, Annual Accomplishment Reports, and Annual Plan Updates for FY
1988 through FY 1992, October 6, 1987.
[19] The nine occcupational categories are those on which EEOC requires
private sector employers to report. In addition, the officials and
managers category is further broken into three categories, executive/
senior-level, mid-level, and first level, in order to analyze the
progress of women and minorities in leadership ranks.
[20] Office of Management and Budget, "Revisions to the Standards for
the Classification of Federal Data on Race and Ethnicity," 62 Fed. Reg.
58,782, Oct. 30, 1997. Statistical Policy Directive No. 15.
[21] OPM's General Counsel refers to several discrimination cases,
including Adarand Constructors, Inc. v. Pena, 515 U.S. 299 (1995)
(under constitutional challenge to Department of Transportation
contracting program, the court concluded that any governmental action
using race or ethnicity as a basis for decision making will be subject
to strict scrutiny if challenged in court), and MD/DC/DE Broadcasters
Assoc. v. Federal Communications Commission, 236 F.3d 13 (D.C. Cir.
2001), cert. den. 534 U.S. 1113 (the court found the Commission's
regulations establishing EEO programs for its radio licensees
unconstitutional because the regulations created pressure on licensees
to focus their recruiting efforts on women and minorities until those
groups generated a safe proportion of the licensees' job applicants;
the court was critical, among other things, of the Commission's focus
on licensees' applicant data.)
[22] Specifically, 48 of 80 respondents (60 percent) said they had at
least some interaction with EEOC, 45 of 81 respondents (56 percent)
reported at least some interaction with OPM, 20 of 77 respondents (26
percent) reported at least some interaction with MSPB, 16 of 81
respondents (20 percent) reported at least some interaction with OSC,
and 13 of 77 respondents (14 percent) reported at least some
interaction with FLRA.
[23] 5 C.F.R. 720.203(f).
[24] 43 Fed. Reg. 19,807, 92 Stat. 3781 (Feb. 23, 1978).
[25] Exec. Order No. 12067, 43 Fed. Reg. 28,967 (June 30, 1978).
[26] 29 C.F.R. Part 1690.
[27] GAO, Managing for Results: Using the Results Act to Address
Mission Fragmentation and Program Overlap, GAO/AIMD-97-146 (Washington,
D.C.: Aug. 29, 1997), and Managing for Results: Barriers to Interagency
Coordination, GAO/GGD-00-106 (Washington, D.C.: Mar. 29, 2000).
[28] GAO, Results-Oriented Government: Practices That Can Help Enhance
and Sustain Collaboration among Federal Agencies, GAO-06-15
(Washington, D.C.: Oct. 21, 2005).
[29] National Partnership for Reinventing Government.
[30] According to OMB, PART, a central element of the PMAs budget and
performance integration initiatives, is a diagnostic tool to evaluate
federal programs as part of the executive budget formulation process.
It applies 25 questions to assess (1) program purpose and design, (2)
strategic planning, (3) program management, and (4) program results.
[31] Appendix to 5 C.F.R. Part 720.
[32] GAO-05-195.
[33] Although the application of EEO laws varies between the three
branches (executive, legislative, and judicial) of the federal
government, this appendix focuses primarily on the EEO framework
applicable to the executive branch.
[34] Pub. L. No. 88-352, title VII, 78 Stat. 241, 253-266 (July 2,
1964).
[35] Section 701(b) of Pub. L. No. 88-352, 78 Stat. 253-254.
[36] Exec. Order No. 11478, 34 Fed. Reg. 12,985 (Aug. 8, 1969). This
executive order superseded earlier executive orders prohibiting
employment discrimination in the federal government, and since 1969 has
been amended to protect additional groups from discrimination.
[37] Pub. L. No. 92-261, § 11, 86 Stat. 103, 111-112 (Mar. 24, 1972),
codified at 42 U.S.C. § 2000e-16.
[38] Pub. L. No. 93-112, § 501, 87 Stat. 355, 390-391 (Sept. 26, 1973),
codified at 29 U.S.C. § 791.
[39] Pub. L. No. 93-508, § 403, 88 Stat. 1578, 1593 (Dec. 3, 1974)
codified at 38 U.S.C. § 4214.
[40] Exec. Order No. 13163, 65 Fed. Reg. 46,563 (July 26, 2000).
[41] Exec. Order No. 13164, 65 Fed. Reg. 46,565 (July 26, 2000).
[42] Pub. L. No. 95-454, 92 Stat. 1111 (Oct. 13, 1978).
[43] 5 U.S.C.§ 2301(b).
[44] 5 U.S.C. §2302(b).
[45] Underrepresentation is a situation in which the number of members
of a minority group designation (determined by EEOC in consultation
with OPM) within a category of civil service employment constitutes a
lower percentage of the total number of employees within the employment
category than the percentage that the minority group constituted within
the labor force of the United States, as determined under the most
recent decennial or mid-decade census, or current population survey. 5
U.S.C. §7201(a)(1).
[46] 5 U.S.C. §7201.
[47] Exec. Order No. 13171, 65 Fed. Reg. 61,251 (Oct. 12, 2000).
[48] Pub. L. No. 107-174, 116 Stat. 566 (May 15, 2002).
[49] The requirements of the No FEAR Act went into effect October 1,
2003.
[50] Pub. L. No. 88-38, 77 Stat. 56 (June 10, 1963). See 29 U.S.C. §
206 (d).
[51] Pub. L. No. 90-202, 81 Stat. 602 (Dec. 15, 1967), amended by Pub.
L. No. 93-259, § 28, 88 Stat. 55, 74-75 (Apr. 8, 1974). See 29 U.S.C.
§§ 621-634.
[52] 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.
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