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Report to Congressional Committees: 

United States Government Accountability Office: 
GAO: 

August 2009: 

Equal Employment Opportunity: 

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

GAO-09-712: 

GAO Highlights: 

Highlights of GAO-09-712, a report to congressional committees. 

Why GAO Did This Study: 

Delays in processing federal equal employment opportunity (EEO) 
complaints, apparent or perceived lack of fairness and impartiality in 
complaint processing, and fear of retaliation in the workplace have 
been long-standing concerns of the Equal Employment Opportunity 
Commission (EEOC), other federal agencies, and Congress. Based on a 
Notification and Federal Employee Antidiscrimination and Retaliation 
Act mandate, GAO analyzed (1) factors that EEO practitioners have 
identified as impeding the fair, prompt, and impartial processing of 
federal EEO complaints and (2) actions that EEO practitioners and other 
stakeholders think could be taken to help address those factors. GAO 
also identified actions that EEOC is taking to improve the federal 
complaint process. GAO surveyed 65 EEO practitioners representing a 
wide cross section of professionals knowledgeable about the federal EEO 
complaint process, who were selected from 16 federal agencies that 
accounted for about 88 percent of complaints filed in fiscal year 2005, 
EEOC, and private sector attorneys’ offices. GAO did not assess the 
validity of practitioners’ views or evaluate the effectiveness of 
initiatives. 

What GAO Found: 

GAO analyzed and grouped into eight, the factors that EEO practitioners 
identified as those they believed impeded the fair, prompt, and 
impartial processing of federal EEO complaints: (1) lack of 
accountability by some agency officials and EEOC practitioners in 
carrying out their responsibilities; (2) lack of sufficient resources 
by some EEO programs and EEOC to fulfill their responsibilities; (3) 
lack of independence by some agency officials, including undue 
interference by some agency legal counsel and human resources officials 
in EEO matters; (4) insufficient knowledge and skills by some agency 
officials and EEO practitioners; (5) lack of authority by some EEO 
officials to dismiss cases that have no merit and lack of subpoena 
power by EEOC administrative judges (AJ); (6) lack of clarity in 
regulation and some guidance and consistent decisions from EEOC; (7) 
lack of effective communication by some EEO practitioners of relevant 
oral and written information to participants and that alternative 
dispute resolution is available; and (8) lack of a firm commitment by 
some agency management and EEO officials to the EEO process. The 
practitioners’ views do not represent the official views of the 
selected agencies and should not be generalized to conclude that all 
federal agencies and EEO practitioners are deficient in all factors 
identified. Also, a few stakeholders GAO contacted stated that without 
the perception that the complaint process is fair, people may choose to 
not participate in it; GAO believes this concern is important and has 
been accounted for within the discussion of several of the factors. 

EEO practitioners surveyed and stakeholders suggested potential 
solutions to address the factors practitioners identified and provided 
information on relevant changes their agencies had made to the process. 
For example, to strengthen accountability, practitioners reported 
establishing measures for timeliness and quality for agency EEO 
professionals and those contracted to perform EEO complaint functions. 
To strengthen EEO staff’s independence, several practitioners and 
stakeholders offered that agencies should adhere more clearly to 
existing EEOC requirements on delineating the roles of the agency 
general counsels in the EEO process. Stakeholders offered potential 
advantages and disadvantages to allowing complainants to file directly 
with EEOC as a means to avoid real or perceived conflicts of allowing 
an agency to investigate a complaint against itself. Several 
practitioners and EEOC officials stated that providing subpoena 
authority to AJs could help improve the efficiency of the EEO complaint 
process by compelling witnesses to testify. 

To help agencies achieve model EEO programs, EEOC has begun to measure 
agencies’ progress in such areas as the timeliness of investigations. 
In June 2008, EEOC announced a proposal that includes provisions that 
may address some of the factors that practitioners identified. The 
proposal would require that agency EEO programs comply with EEOC 
regulations and other guidance and that EEOC review those programs for 
compliance. The proposal also would permit agencies to conduct pilot 
projects to test new ways to process EEO complaints that are not 
presently included in existing regulations. 

What GAO Recommends: 

GAO recommends that if EEOC approves pilot projects to test ways to 
improve complaint processing, it should direct pilot project officials 
to develop sound evaluation plans and EEOC staff to review and approve 
such plans. EEOC agreed with GAO’s recommendations. 

View [hyperlink, http://www.gao.gov/products/GAO-09-712] or key 
components. For more information, contact George Stalcup at (202) 512-
6806 or stalcupg@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

EEO Practitioners Identified Factors That Impede the Prompt, Fair, and 
Impartial Processing of EEO Complaints: 

EEO Practitioners and Other Stakeholders Proposed Solutions That They 
Believe Address the Identified Factors: 

Improving Equal Opportunity in the Federal Workforce: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: EEO Laws Applicable to Federal Employees: 

Appendix III: Comments from the U.S. Equal Employment Opportunity 
Commission: 

Appendix IV: GAO Contact and Staff Acknowledgments: 

Table: 

Table 1: Data on Average Days for Processing Formal EEO Complaints by 
Agencies and EEOC for Fiscal Years 2005 through 2007: 

Figures: 

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

Figure 2: Selected Data on EEOC's Appropriations, Number of AJs, and 
Hearings Inventory, Fiscal Years 2005 through 2008: 

Abbreviations: 

ADR: alternative dispute resolution: 

AJ: administrative judge: 

DOD: Department of Defense: 

EEO: equal employment opportunity: 

EEOC: Equal Employment Opportunity Commission: 

EPCA: EEO Program Compliance Assessment: 

FAD: final agency decision: 

FAST: Federal Appellate Settlement Team: 

FLRA: Federal Labor Relations Authority: 

MD: management directive: 

MSPB: Merit Systems Protection Board: 

No FEAR: Notification and Federal Employee Antidiscrimination and 
Retaliation: 

OFO: Office of Federal Operations: 

OGC: Office of General Counsel: 

OPM: Office of Personnel Management: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

August 12, 2009: 

Congressional Committees: 

The federal government is the nation's largest employer and as such it 
has a special responsibility to ensure equal opportunity of employment 
for its employees and applicants for employment. In a high-performing 
workplace, federal employees must be able to pursue the missions of 
their organizations free from discrimination and should not fear or 
experience retaliation or reprisal. To help achieve such a workplace, 
antidiscrimination laws prohibit employment discrimination on the basis 
of race, color, gender, religion, national origin, age, and disability. 
Federal employees or applicants for employment who allege that they 
have been discriminated against by a federal agency may file equal 
employment opportunity (EEO) complaints with that agency. In addition, 
a person who files an EEO complaint or participates in the 
investigation of such a complaint is protected from retaliation. 

The Equal Employment Opportunity Commission (EEOC) has issued 
regulations that govern how the EEO discrimination complaints of 
federal employees are to be processed administratively and requires 
agencies to provide for the prompt, fair, and impartial processing of 
complaints.[Footnote 1] Under these regulations, the federal EEO 
process consists of two stages--informal or precomplaint counseling, 
and formal, when a complaint is filed with the agency. The 
investigation into allegations of discrimination is a key component of 
the formal EEO process. EEOC regulations require agencies to 
investigate complaints they accept within 180 days.[Footnote 2] 
Complainants may request a final decision from the agency or a hearing 
before an EEOC administrative judge (AJ), who has another 180 days to 
issue a decision. However, failures by agencies and EEOC to adhere to 
the time frames in regulation have been a perennial concern. 

Delays in the processing of federal EEO complaints have been a long- 
standing concern of EEOC, other federal agencies, and Congress. Since 
the mid-1990s, we have reported that the EEO complaint process was 
inefficient, expensive, and time-consuming.[Footnote 3] For example, in 
2000, we testified that the complaint process and EEOC's role in 
eliminating discrimination in the federal workplace had been targets of 
criticism because of the rising number of complaints, growing backlogs 
of unresolved cases, and increasing amount of time it takes to bring 
cases to a close.[Footnote 4] In 2001 testimony during deliberation of 
the Notification and Federal Employee Antidiscrimination and 
Retaliation (No FEAR) Act,[Footnote 5] we noted that the lack of data 
on the number of complaints of workplace discrimination made it 
difficult for agency managers to understand the nature and scope of 
issues in the workplace involving discrimination and other conflicts 
and develop strategies for dealing with those issues. We also stated 
that agencies and their leaders should be held accountable for 
providing fair and equitable workplaces free from discrimination and 
that individuals need to be held accountable for their actions in cases 
where discrimination has occurred. 

In 2002, Congress passed the No FEAR Act amid concerns about 
discrimination and retaliation against federal employees.[Footnote 6] 
Through various provisions of the No FEAR Act, Congress sought to 
improve accountability by federal agencies in complying with 
antidiscrimination laws, finding that those agencies that practice or 
tolerate discrimination cannot be run effectively. More recently, in 
2008, the Merit Systems Protection Board (MSPB) reported that its 
survey results on retaliation suggest that work remains to be done in 
creating a workplace where employees can raise concerns about 
organizational priorities, work processes, and personnel policies and 
decisions without fear of retaliation and where managers can respond to 
such concerns openly and constructively.[Footnote 7] 

Various requirements in the act, including those for agencies to report 
on the cases of alleged discrimination and their disposition and the 
number of employees disciplined for discrimination, were intended to 
enable Congress to more effectively oversee compliance by agencies. One 
mandate in the act required us to evaluate the effect on agencies and 
EEOC of allowing complainants to bypass the agency complaint process 
and instead file complaints directly with EEOC.[Footnote 8] 

Based on discussions and agreement with interested committees, we 
analyzed underlying concerns with the federal EEO complaint process and 
potential options and solutions for addressing them. We surveyed a wide 
cross section of individuals involved with the federal EEO complaint 
process who were familiar with and had knowledge of the process. We 
termed these individuals "EEO practitioners" and collected their 
informed views concerning the EEO complaint process. The seven EEO 
practitioner groups we contacted were agency EEO directors, 
investigators, counselors, and legal counsel; EEOC AJs and appeals 
attorneys; and plaintiffs' attorneys.[Footnote 9] 

This report provides the results of our analysis of (1) factors that 
EEO practitioners have identified as impeding the prompt, fair, and 
impartial processing of federal EEO complaints and (2) actions that EEO 
practitioners and other stakeholders think could be taken to help 
address those factors, including potential implications of changes to 
the administrative EEO complaint process. We also include information 
on options offered by stakeholders and actions being taken by EEOC to 
improve equal opportunity and the EEO complaint process in the federal 
workforce. 

To identify factors that impede the processing of federal EEO 
complaints and ways to address these factors, we surveyed 65 EEO 
practitioners selected from 16 federal agencies that reported at least 
50 complaints filed in fiscal year 2005 and EEOC.[Footnote 10] We also 
included plaintiffs' attorneys from the private sector. We selected 
nine individuals from each of the seven practitioner groups to ensure 
balance and reduce possible bias in our final results.[Footnote 11] We 
did not select a member of every practitioner group from every agency. 
To identify actions for addressing the identified factors, we again 
used information from our survey and interviewed representatives from a 
variety of stakeholder organizations in the federal EEO complaint 
process, including federal employee unions, federal executive and 
managers associations, an agency attorney association, and federal 
employee organizations. The stakeholder organizations we contacted for 
this review do not represent all of the potential stakeholder 
organizations from specific groups protected by antidiscrimination 
laws. Additionally, we reviewed our prior reports and reports from EEOC 
and others in addressing both objectives. To identify actions taken by 
EEOC to improve equal opportunity in the federal workforce, we reviewed 
EEOC documents and interviewed EEOC officials. We report the views of 
practitioners who are knowledgeable of the federal EEO complaint 
process, but these views do not represent the official views of the 17 
agencies. Moreover, the practitioners' views cannot be generalized to 
conclude that all federal agencies and EEO practitioners are deficient 
in some or all the factors identified. The views expressed by the 
practitioners do not represent the views of GAO. Further, we did not 
assess the validity of the practitioners' views of impediments or 
solutions to the EEO complaint processes or evaluate the effectiveness 
of initiatives that agency EEO practitioners said their agencies had 
implemented to improve their complaint process or those reported by 
EEOC. Appendix I contains a detailed description of our objectives, 
scope, and methodology. 

We conducted this performance audit from May 2006 through August 2009 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives. 

Background: 

The federal EEO complaint process consists of two stages, informal, or 
precomplaint counseling, and formal. Appendix II contains information 
on EEO laws applicable to federal employees. 

Informal Stage, or Precomplaint Counseling: 

Under existing regulations, before filing a complaint, an employee must 
consult an EEO counselor at the agency in order to try to informally 
resolve the matter. The employee must contact an EEO counselor within 
45 days of the matter alleged to be discriminatory or, in the case of a 
personnel action, within 45 days of the effective date of the action. 
Counselors are to advise individuals that when the agency agrees to 
offer alternative dispute resolution (ADR) in the particular case, 
[Footnote 12] they may choose to participate in either counseling or in 
ADR. Counseling is to be completed within 30 days from the date the 
employee contacted the EEO office unless the employee and agency agree 
to an extension of up to an additional 60 days. If ADR is chosen, the 
parties have 90 days in which to attempt resolution. If the matter is 
not resolved within these time frames, the counselor is required to 
inform the employee in writing of his or her right to file a formal 
discrimination complaint with the agency.[Footnote 13] 

Formal Stage: 

After a complainant files a formal discrimination complaint, the agency 
must decide whether to accept or dismiss the complaint and notify the 
complainant. If the agency dismisses the complaint, the complainant has 
30 days to appeal the dismissal to EEOC.[Footnote 14] If the agency 
accepts the complaint, it has 180 days to investigate the accepted 
complaint from the date the complaint was filed and provide the 
complainant with a copy of the investigative file.[Footnote 15] Within 
30 days of receipt of the copy of the investigative file, the 
complainant must choose between requesting (1) a hearing and decision 
from an AJ or (2) a final decision from the agency.[Footnote 16] When a 
hearing is not requested, the agency must issue a final agency decision 
(FAD) within 60 days on the merits of a complaint. A complainant may 
appeal an agency's final decision to EEOC within 30 days of receiving 
the final decision. 

In cases where a hearing is requested, the complaint is assigned to an 
EEOC AJ, and the AJ has 180 days to issue a decision and send the 
decision to the complainant and the agency.[Footnote 17] If the AJ 
issues a finding of discrimination, he or she is to order appropriate 
relief. After the AJ decision is issued, the agency has 40 days to 
issue a final order notifying the complainant whether the agency will 
fully implement the decision of the AJ, after which the employee has 30 
days to file an appeal with EEOC of the agency's final order.[Footnote 
18] If the agency issues an order notifying the complainant that the 
agency will not fully implement the decision of the AJ, the agency also 
must file an appeal with EEOC at the same time. Following an appeal 
decision, both the complainant and the agency have 30 days in which to 
request reconsideration of EEOC's appeal decision. Decisions on appeals 
are issued by EEOC's Office of Federal Operations (OFO), on behalf of 
the commission.[Footnote 19] 

A complainant may file a civil action in federal district court at 
various points during and after the administrative process.[Footnote 
20] The filing of a civil action will terminate the ongoing 
administrative processing of the complaint. A complainant may file a 
civil action within 90 days of receiving the agency's final decision or 
order or EEOC's final decision. A complainant may also file a civil 
action after 180 days from filing a complaint with his or her agency or 
after filing an appeal with EEOC, if no final action or decision has 
been made. Figure 1 shows the EEO complaint process. 

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

[Refer to PDF for image: illustration] 

Alleged discriminatory action occurs: 

Informal stage: 

Within 45 days: 
EEO counseling[A]; 
Complainant and agency agreement to extend counseling: additional 60 
days to the step below. 

Within 30 days: 
Notice of right to file a formal complaint; 

Within 15 days: 

Formal stage: 

Formal complaint filed with agency: 
Dismissed complaint: within 30 days: Appeal to EEOC; 

Or: Withing 180 days[B]: 
Accepted complaint investigated and report of investigation issued to 
complainant; 

Within 30 days: Either of the two following processes: 
1) Hearing not requested: 
- 60 days; 
- Final agency decision or order; 
- 30 days[C]; 
- Appeal to EEOC. 

2) Hearing requested by complainant before EEOC administrative judge; 
- 180 days; 
- Administrative judge’s decision; 
- 40 days; 
- Final agency decision or order; 
- 30 days[C]; 
- Appeal to EEOC. 

Source: GAO, based on EEOC regulations. 

[A] Where the agency agrees to offer ADR in the particular case, 
employees may choose between participation in ADR and counseling 
activities. ADR generally refers to any procedure agreed to by the 
parties in a dispute that is used to resolve issues in controversy, 
including, but not limited to, mediation. 

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

[C] If the final agency decision does not fully implement the AJ's 
decision, the agency must file an appeal at the same time it issues the 
final decision. 

[End of figure] 

EEOC Management Directives Related to the Complaint Process: 

In addition to regulations governing the EEO complaint process, EEOC 
has issued guidance in the form of management directives (MD) to help 
agencies process complaints and create a model EEO program. MD-110, 
revised in November 1999, provides federal agencies with policies, 
procedures, and guidance relating to processing EEO complaints, 
including, among other things, the authority of the EEO director and 
the director's reporting relationship to the agency head, mandatory 
training requirements for EEO counselors and investigators, procedures 
for counseling and ADR, and the role of the AJ. In 2003, EEOC issued MD-
715, which, among other things, establishes requirements for federal 
agencies to create model EEO programs, including guidance for proactive 
prevention of unlawful discrimination. Under MD-715, each agency is to 
have an efficient and fair dispute resolution process and effective 
systems for evaluating the impact and effectiveness of its EEO program 
and use a complaint tracking and monitoring system that permits the 
agency to identify the location, status, and length of time elapsed at 
each stage of the process and other information necessary to analyze 
complaint activity and identify trends. 

Timeliness of Complaint Processing: 

Among other requirements, EEOC regulations generally provide that 
agencies are to complete investigations of formal complaints within 180 
days of their receipt and issue FADs within 60 days for those cases 
where a hearing is not requested. When a hearing is requested, AJs are 
to issue decisions within 180 days of receiving the complaint files 
from an agency. EEOC regulations do not set time frames for resolving 
appeals, but in its most recent strategic plan, EEOC has set an annual 
performance measure that by 2012 70 percent of federal sector appeals 
are to be resolved within 180 days. From fiscal years 2005 through 
2007, appeals closures have averaged from 194 to 230 days. Table 1 
shows that although federal agencies have made improvements in the time 
it takes to process formal EEO complaints, they are still not meeting 
the deadlines in regulation. The table includes data from EEOC's annual 
reports on the federal workforce on average processing days for 
investigations and FADs on merits of complaints, both including the 
U.S. Postal Service--which has the largest number of EEO complaints-- 
and without it, because the Postal Service complaint volume affects 
average processing times.[Footnote 21] These data show that in fiscal 
year 2007, the Postal Service completed investigations in an average of 
106 days and FADs in 28 days. Table 1 also shows average processing 
days for EEOC hearings decisions, which on average have exceeded 
requirements. 

Table 1: Data on Average Days for Processing Formal EEO Complaints by 
Agencies and EEOC for Fiscal Years 2005 through 2007: 

Fiscal year: 2005; 
Agencies, Investigations[A](to be done in 180 days): With Postal 
Service data: 237; 
Agencies, Investigations[A](to be done in 180 days): Without Postal 
Service data: 247; 
Agencies: FADs[B](to be done in 60 days): With Postal Service data: 
191; 
Agencies: FADs[B](to be done in 60 days): Without Postal Service data: 
300; 
EEOC: Hearing decisions (to be done in 180 days)[C]: 249. 

Fiscal year: 2006; 
Agencies: Investigations[A](to be done in 180 days): With Postal 
Service data: 186; 
Agencies: Investigations[A](to be done in 180 days): Without Postal 
Service data: 242; 
Agencies: FADs[B](to be done in 60 days): With Postal Service data: 
135; 
Agencies: FADs[B](to be done in 60 days): Without Postal Service data: 
211; 
EEOC: Hearing decisions (to be done in 180 days)[C]: 274. 

Fiscal year: 2007; 
Agencies: Investigations[A](to be done in 180 days) With Postal Service 
data: 176; 
Agencies: Investigations[A](to be done in 180 days): Without Postal 
Service data: 226; 
Agencies: FADs[B](to be done in 60 days): With Postal Service data: 
120; 
Agencies: [B](to be done in 60 days): Without Postal Service data: 180; 
EEOC: Hearing decisions (to be done in 180 days)[C]: 248. 

Source: EEOC. 

Notes: EEOC's annual report for fiscal year 2007, which was the most 
recent report containing agency complaint data, showed that the Postal 
Service accounted for about 42 percent of completed investigations in 
fiscal year 2007. In addition, the Postal Service accounted for about 
60 percent of FADs. 

The average processing days for hearings do not include the time EEOC 
takes to "docket" a case--that is, to send an order to the complainant 
and the agency that provides the parties with an EEOC hearing case 
number, orders the agency to forward a copy of the complaint file, and 
assigns an AJ. According to EEOC's Handbook for Administrative Judges, 
docketing a case is to be completed within 15 days of EEOC receiving a 
hearing request. In fiscal year 2008, according to a senior EEOC 
official, EEOC took an average of 56 days to docket a case after 
receiving a hearing request. 

[A] Includes data on agency-and contractor-conducted investigations. 

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

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

[End of table] 

Timeliness remains a problem. For example, according to EEOC officials 
in fiscal year 2008 EEOC took an average of 278 days to issue a hearing 
decision, but this period does not include the time EEOC takes to 
"docket" a case, that is, to send an order to the complainant and the 
agency that provides the parties with an EEOC hearing case number, 
orders the agency to forward a copy of the complaint file, and assigns 
an AJ. Although docketing a case is to be completed within 15 days of 
EEOC receiving a hearing request, in fiscal year 2008 according to a 
senior EEOC official, EEOC took an average of 56 days to docket a case 
after receiving a hearing request. In addition, only about 39 percent 
of hearings were done within the 180-day regulatory requirement. 

EEO Practitioners Identified Factors That Impede the Prompt, Fair, and 
Impartial Processing of EEO Complaints: 

When asked to identify factors that impeded the prompt, fair, and 
impartial processing of EEO complaints at their agencies and describe 
how those factors impeded the process, selected EEO practitioners 
provided hundreds of responses. Because these practitioners represent 
different parts of the complaint process and some of the practitioners 
may only be familiar with their part of the process, we could not tally 
the number of responses under each factor. While recognizing that the 
factors the practitioners identified are not necessarily discrete, we 
analyzed and grouped them into eight broad categories of factors and 
then asked those same EEO practitioners to rank them in terms of their 
importance for improving the federal EEO complaint process.[Footnote 
22] These factors and their rankings are (1) lack of accountability on 
the part of some agency management officials and EEO practitioners in 
carrying out their responsibilities; (2) insufficient resources for 
some agency EEO offices and EEOC to fulfill their responsibilities; (3) 
lack of independence concerning the potential conflict of having 
agencies conduct their own EEO complaint investigations and the undue 
influence of some agency legal counsel and human resources officials on 
the EEO process; (4) insufficient knowledge and skills by some agency 
officials, complainants, and EEO practitioners to fulfill their 
responsibilities; (5) lack of authority by some EEO officials to 
dismiss cases that have no merit and lack of subpoena power by EEOC 
AJs; (6) lack of clarity in regulation and some guidance and consistent 
decisions from EEOC; (7) lack of effective communication by some EEO 
practitioners of relevant oral and written information to participants 
in the process and that ADR (e.g., conciliation, facilitation, or 
mediation) is available; and (8) lack of a firm commitment by some 
agency management and EEO officials to the EEO process. 

In our discussions with stakeholders, they generally concurred with 
these eight factors. In addition, a few stakeholders identified the 
perception of unfairness as an overarching theme. These stakeholders 
commented that without the perception that the complaint process is 
fair, people may be frustrated and choose to not participate in it. We 
discussed with these stakeholders that fairness is indeed one of the 
goals of the EEO complaints process, along with promptness and 
impartiality. The perception that the system is not fair, among other 
issues, has led to calls for reform and is directly related to our 
effort in this review to identify factors that need to be addressed. We 
agree that this concern is important and believe it has been accounted 
for within the context of the discussion on factors related to 
accountability; independence; and clarity in regulation, guidance, and 
consistent EEOC decisions. 

The eight factors are consistent with concerns raised previously about 
problems with the federal sector EEO complaint process. For example, in 
November 2002, EEOC held an open meeting to address issues with the EEO 
complaint process amid concerns from stakeholders representing both 
complainants and federal agencies that the process is "much too slow, 
far too expensive, unnecessarily cumbersome, and given to potential 
conflicts of interest." In March 2003, a coalition of civil rights 
employee advocates and other stakeholder groups submitted a seven-step 
proposal to EEOC commissioners to improve the federal sector EEO 
complaint process.[Footnote 23] This proposal included steps to make 
ADR mandatory for managers in the informal and formal stages of the 
administrative process and have EEO directors report directly to the 
agency head, and a recommendation that EEOC adopt a uniform standard 
for what states a claim of employment discrimination. Additionally, in 
September 2006, the commission held a meeting where stakeholders 
discussed the practices that work in obtaining a timely, thorough, and 
complete investigation as well as the barriers that prevent such 
investigations.[Footnote 24] One issue raised in that meeting was the 
lack of consequences (related to accountability) for agencies that do 
not comply with the 180-day requirement to complete investigations. A 
commissioner noted that a double standard exists, because a complaint 
would be dismissed if a complainant missed any of the deadlines. The 
quality of investigations was another issue--for both in-house and 
contract investigations. One participant stated that clear benchmarks 
need to exist with respect to the quality of the report of 
investigation, noting that in the end a poor investigation hurts the 
agency as well as the employee. 

Lack of Accountability: 

EEO practitioners indicated that there appear to be no consequences for 
some agency officials or EEOC practitioners for not adhering to time 
frames established in EEOC regulations. For example, if an employee 
files a formal discrimination complaint, an agency must decide whether 
to accept the complaint and has 180 days to investigate an accepted 
complaint. In cases where the complainant requests a hearing from an 
EEOC AJ, the AJ generally has 180 days to issue a decision after the 
complaint file has been received from the agency. While many 
respondents cited agencies and EEOC for not adhering to time frames, 
some also said that a lack of timely cooperation by complainants 
delayed the processing of complaints. 

Insufficient Resources for Agency EEO Offices and EEOC: 

Many EEO practitioners across the various practitioner groups 
identified a lack of resources--staff and funding at some agency EEO 
offices and at EEOC--as impeding the timely processing of federal EEO 
complaints. For example, an EEO director and an investigator stated 
that because of understaffing, regulatory time limits are often 
exceeded. Another agency practitioner said that internal delays are 
also caused by a lack of resources in agency EEO offices. Several EEO 
practitioners stated that retirements and reassignments have made it 
difficult to keep counselors in agency EEO offices. Others mentioned 
problems with staffing levels at EEOC. One AJ noted that because of a 
lack of support staff, AJs spent time copying files, filing documents, 
making all of their own travel arrangements, and preparing closed case 
files for mailing. Figure 2 shows that as of fiscal year 2008, the 
number of AJs has decreased by about 13 percent since fiscal year 2005 
while EEOC's hearings inventory has increased by 10 percent, and EEOC's 
appropriations have generally remained constant, increasing by less 
than 1 percent. 

Figure 2: Selected Data on EEOC's Appropriations, Number of AJs, and 
Hearings Inventory, Fiscal Years 2005 through 2008: 

[Refer to PDF for image: combined vertical bar and line graph] 

FY 2005: 
EEOC hearings inventory: 5,896; 
Number of administrative judges: 136; 
EEOC appropriation: $326.8 million. 

FY 2006: 
EEOC hearings inventory: 4,912; 
Number of administrative judges: 130; 
EEOC appropriation: $326.9 million. 

FY 2007: 
EEOC hearings inventory: 5,505; 
Number of administrative judges: 125; 
EEOC appropriation: $328.7 million. 

FY 2008: 
EEOC hearings inventory: 6,488; 
Number of administrative judges: 118; 
EEOC appropriation: $329.3 million. 

Source: GAO analysis of EEOC data. 

[End of figure] 

Lack of Independence: 

EEO practitioners raised concerns regarding the potential conflict of 
having agencies conduct their own EEO complaint investigations and 
agency offices or functions improperly interfering in the EEO complaint 
process (i.e., legal counsel and human resources professionals). For 
example, an AJ stated that agency-conducted investigations remain an 
impediment to impartiality and characterized such investigations as the 
"fox guarding the henhouse." EEO practitioners specifically raised 
concerns regarding the perceived conflict of agency offices or 
functions improperly interfering in the EEO complaint process. For 
example, a plaintiff's attorney stated that one problem that impedes 
the prompt and fair processing of complaints is the intrusion of agency 
defense counsel into the EEO process, despite EEOC's guidance that 
agencies' EEO functions and defense functions must remain separate. 
This practitioner further stated that many EEO offices get legal advice 
from the same agency component that defends the agency--a direct 
conflict of interest. An AJ added that although human resources and EEO 
offices should work together in resolving complaints and grievances, 
they should be totally separated in the processing of EEO complaints 
because often allegations about personnel actions, including 
promotions, reassignments, and hiring, involve the human resources 
office as the responsible management official. 

Insufficient Knowledge and Skills: 

Many EEO practitioners expressed concerns that some participants in the 
EEO complaint process, including EEO investigators, agency EEO 
directors, agency management, and EEO counselors, are not sufficiently 
knowledgeable of EEO regulations and guidance and of their 
responsibilities within the process. For example, several respondents 
cited a general lack of knowledge of EEO or employment discrimination 
law by agency personnel processing complaints (e.g., EEO counselors and 
investigators). Many respondents cited poor quality of EEO 
investigations, and several cited investigators' lack of skills. As one 
AJ remarked, when investigations are of poor quality, the parties are 
required to engage in discovery at the EEOC level, which takes time and 
delays processing. Several practitioners raised concerns about AJs as 
well, including that some of them have insufficient experience and 
training and that the quality of the work they perform is not 
systematically monitored or addressed. 

Insufficient Authority: 

EEO practitioners cited several concerns that some individuals and 
organizations responsible for carrying out federal EEO programs did not 
have sufficient authority to fulfill their responsibilities, including 
the lack of sufficient authority to dismiss cases that do not meet 
criteria for discrimination and the lack of subpoena power to compel 
witnesses to testify and provide requested documents. According to an 
agency legal counsel, an AJ, and plaintiffs' attorneys, the inability 
to subpoena witnesses during EEOC hearings can delay fact-finding and 
presents a difficulty to complainants in trying to prove their claims 
when witnesses are reluctant to testify, including nonfederal witnesses 
(e.g., witnesses who are no longer with the agency). 

Lack of Clarity of EEOC Regulations and Guidance and Consistent EEOC 
Decisions: 

Some EEO practitioners indicated that more guidance is needed from EEOC 
on regulations and MDs and that EEOC decisions need to follow judicial 
precedent and need to be consistent. Respondents provided numerous 
comments about the lack of consistency of AJ decisions with case law, 
and EEOC officials also acknowledged this concern. An AJ said that 
inconsistent EEOC OFO appellate decisions make it difficult for AJs and 
other parties to know what to do in certain situations. Another 
practitioner, an EEO investigator, stated that EEOC OFO appellate 
decisions can be inconsistent and unclear, making procedural decisions 
(e.g., dismissals) a "gamble." 

Lack of Communication: 

According to EEO practitioners, some individuals and organizations 
responsible for carrying out federal EEO programs sometimes do not 
effectively communicate relevant oral and written information on the 
EEO process to participants in a timely and effective manner. Also, as 
an agency legal counsel stated, it can be difficult at times to 
understand the actions alleged in a complaint, which results in further 
follow-up (sometimes more than once) with complainants to get the 
necessary information. Further, an AJ stated that an impediment to the 
early resolution of complaints is the lack of a requirement for 
managers to participate in ADR or mediation. 

Lack of Commitment: 

EEO practitioners stated that some agency management and other 
individuals responsible for carrying out federal EEO programs lack a 
firm commitment to fair and timely processing of complaints. The lack 
of top management commitment to the EEO program can have a cascading 
effect on other officials and staff. For example, one practitioner 
stated that if executive management does not support the EEO complaint 
process, other management officials give it little importance or 
priority. An EEO investigator cited a lack of urgency at most agencies 
in resolving and investigating EEO complaints. 

EEO Practitioners and Other Stakeholders Proposed Solutions That They 
Believe Address the Identified Factors: 

EEO practitioners and other stakeholders provided potential solutions 
that they believe address the factors they identified as well as 
information on changes their agencies had made to the EEO complaint 
process. These practitioners also raised other options, beyond the 
potential solutions, for changing the EEO complaint process. EEOC has 
several initiatives under way or proposed for improving equal 
opportunity in the federal workforce. 

Strengthening Accountability: 

EEOC regulations require federal agencies to provide for the prompt, 
fair, and impartial processing of complaints and for the review and 
evaluation of managerial and supervisory performance to help ensure 
vigorous enforcement of equal opportunity. Further, according to EEOC's 
MD-715, a model EEO program will hold managers, supervisors, EEO 
officials, and personnel officers accountable for the effective 
implementation and management of the agency's program. A majority of 
the respondents from the agencies and EEOC, as well as plaintiffs' 
attorneys, identified agency management, agency EEO directors, EEO 
investigators, and EEOC management as the top four groups of EEO 
practitioners for which they believed that it was very or extremely 
important to strengthen accountability. Measures of accountability 
outlined in MD-715 include evaluating managers and supervisors on 
efforts to ensure equality of opportunity for all employees and 
routinely reviewing personnel policies to ensure that they are 
consistently applied and fairly implemented. For fiscal year 2007, EEOC 
reported that in fiscal year 2006 117 of the 167 agencies that 
submitted MD-715 reports, or 70 percent, indicated that managers and 
supervisors were rated on their commitment to EEO. 

For strengthening accountability, EEO practitioners suggested ways to 
better hold accountable (1) agency management and EEO staff, including 
directors, counselors, and investigators; (2) EEOC management, AJs, and 
appellate attorneys; and (3) EEO complainants. For example, an EEO 
director suggested that implementing performance-based accountability 
measures for EEO directors could improve the timeliness and quality of 
complaint processing, which could enhance the fairness and impartiality 
of the EEO complaint process. Another practitioner advocated adopting 
measurable EEO performance standards for managers and supervisors at 
the GS-13 level and above. In its June 2008 notice of proposed 
rulemaking, EEOC included a requirement that an agency that has not 
completed an EEO investigation within the 180-day time limit is to 
notify the complainant in writing that the investigation is not 
complete, when it will be completed, and that the complainant has the 
right to request a hearing or file a lawsuit.[Footnote 25] EEOC stated 
its belief that such a requirement may shorten delays in agency 
investigations by providing an incentive for agencies to complete 
investigations in a timely manner. 

Several EEO practitioners stated that just as accountability within 
agencies is important, EEOC should also be held more accountable for 
adhering to time frames for steps in the process, such as issuing a 
hearing decision. As for holding complainants more accountable, one 
practitioner felt that a complaint should be dismissed if the 
complainant fails to cooperate if the agency has met its 
responsibilities.[Footnote 26] The practitioner, an investigator, 
offered that complainants should be accountable for participating in a 
requested EEOC hearing after discovery and depositions have been 
conducted. According to this practitioner, EEOC should not allow the 
complainant to withdraw and request a FAD at this stage--if the 
complainant withdraws from the hearing at this stage, the complaint 
should be dismissed with no further action. 

Some respondents said that their organizations established time 
thresholds and quality standards for internal processes. For example, 
an EEO investigator reported that the timely processing of complaints 
has been tied to performance standards to help ensure that cases are 
promptly processed. Another EEO investigator's agency established goals 
and measures for timeliness according to EEOC regulations and 
instituted quality standards for each centralized EEO process. Further, 
the agency established timelines and quality standards for both 
contractors and agency EEO professionals, and the agency developed 
measures in internal databases to track and monitor timelines and 
quality on daily, weekly, monthly, quarterly, and annual bases. An EEO 
director from another agency also reported that the agency achieved 
success in processing complaints by implementing performance-based 
accountability measures (i.e., internal timeliness and quality 
controls), including the following: standard operating procedures, 
stringent internal deadlines, timeliness and quality assurance review 
processes, timeliness and quality elements in results-based performance 
standards, management oversight, and EEO staff training. Finally, an 
EEO director reported that his agency had put in place a departmental 
accountability policy to track disciplinary and corrective actions 
taken as a result of discrimination-related misconduct. 

Because of numerous concerns raised both before and during the 
commission's September 2006 meeting and subsequent focus group 
discussions, EEOC officials stated that the commission performed a 
limited assessment of the quality of agency investigations by having 
AJs complete surveys during selected periods from 2005 to 2007. 
Overall, from the limited assessment, the AJs reported that most of the 
reports of investigation were complete and well organized, containing 
enough evidence to allow the AJ to proceed with the hearing process. 
However, the AJs reported that several agencies routinely submitted 
reports of investigation that were particularly lacking and described 
common deficiencies, including reports being disorganized and 
containing duplicative materials, being incomplete and always late, and 
containing an investigator's statement of the claim that was legally 
insufficient. EEOC officials noted that the commission is considering 
developing a formal Quality Control Evaluation system that would rate 
the quality of agency investigations. However, EEOC officials did not 
provide a proposed time frame for this effort. 

Respondents also reported their agencies' making greater use of 
information technology to process and track complaints. One 
practitioner noted that his agency had automated several features of 
the EEO complaint process, including the format of decisions through 
use of boilerplate language that can be selected for routine matters; 
parts of decision writing with its forms, such as coversheets, code 
sheets, and envelopes; and storage of case files that are scanned into 
the Adobe Acrobat program, thereby expediting the reviewing, 
bookmarking, and searching of these files. One EEO director reported 
that her agency standardized EEO complaint forms, installed the forms 
on compact discs that were furnished to all counselors, trained the 
counselors in the use of the electronic forms, and purchased an 
automated complaints tracking system to simplify and standardize EEO- 
related reports. Several practitioners (EEO directors, an EEO 
counselor, agency legal counsel, and an investigator) indicated that 
their agencies had put in place a complaints tracking system, which 
helps in the preparation of standardized reports. Without a system like 
this one, several reported, much time is consumed finding the 
information that needs to be in such reports. An official from EEOC's 
Office of Field Programs indicated that EEOC has begun piloting an 
electronic case management system to provide more expeditious hearings 
case processing. Additionally, a senior official from MSPB described 
several actions that MSPB has taken to improve its operations, 
including establishing an electronic filing program and a repository of 
electronic documents that are available to the parties in cases. 

Providing Sufficient Resources at the Agency and at EEOC: 

Regulations and EEOC MD-715 state that agencies should allocate 
sufficient resources to their EEO programs to, among other things, 
ensure that unlawful discrimination in the workplace is promptly 
corrected and addressed. More than three-quarters of the respondents 
from the agencies and EEOC as well as plaintiffs' attorneys stated that 
it would be very or extremely important to improve the current 
allocation of resources for EEOC AJs, while about three-quarters of 
respondents felt that improvement in the current allocation of 
resources for EEO investigators, agency EEO directors, and EEOC 
management was very or extremely important. 

Although it is important for agencies to provide sufficient resources 
for EEO programs, it is equally important for those programs to use 
those resources efficiently. One practitioner, an EEO investigator, 
reported two ways her agency uses resources efficiently. First, the 
investigator stated that her agency was shifting away from staff 
investigators and FAD writers to greater reliance on contractors and 
that the two firms her agency used delivered good quality products and 
were faster and more cost-effective than agency staff. Second, the 
investigator also reported that her agency was engaged in an activity- 
based costing exercise, so staff must account for all complaint- 
processing-related tasks, which her office can then cost out to the 
bureau where the complaints arose, allowing the bureaus to focus on 
early resolution to keep costs down. In addition, the greater use of 
information technology by some agencies, which was cited earlier as 
assisting agencies in saving time, can also help them in keeping costs 
down. An EEO director stated that EEOC should have the capacity to 
process workloads and accept evidence, records, and files 
electronically. At EEOC, where its hearings inventory has increased but 
its appropriations have generally remained constant, EEOC officials 
said that as of April 2009, the agency was in the process of completing 
draft instructions to implement the pilot "Three-Track Case Management 
Process" system for hearings that the agency expects will result in 
quicker resolutions and shorter processing times through expedited 
discovery and hearing time frames using its existing resources. Under 
this process, AJs would prioritize their cases based on complexity, 
using one of three tracks: fast, regular, or complex.[Footnote 27] 

Further, it is necessary that agencies assess the quality as well as 
the costs associated with contracted investigations and proposed FADs. 
EEOC's 2004 report on federal sector investigations and costs found 
that some agencies were incurring additional costs when they had to 
supplement the investigative report or require the contractor to 
conduct additional work, which could contribute to delays in meeting 
time frames.[Footnote 28] Several practitioners mentioned that agencies 
need to have better reviewers for sufficiency of investigations and to 
do quality control. For example, an agency legal counsel stated that at 
his agency, the EEO office reviews contracted reports of investigation 
and draft FADs but that reports of investigation were not always 
reviewed for completeness and relevance before being provided to the 
complainants. This practitioner pointed out that because of the lack of 
a quality review, often the agency or the complainant needed to get 
additional documents in discovery, although the agency had already paid 
for the preparation of a report of investigation. 

Strengthening Independence: 

Within agencies, EEOC regulations and MD-110 require that EEO directors 
should be under the immediate supervision of the head of the agency. 
Placing the EEO director in this position underscores the importance of 
equal opportunity to the mission of the agency and helps ensure that 
the EEO director is able to act with the greatest degree of 
independence. In its fiscal year 2007 report on the federal workforce, 
EEOC reported that 61 percent of the EEO directors reported to the 
agency head.[Footnote 29] In addition, EEOC's MD-110 states that to 
maintain the integrity of the EEO investigative process, it should be 
kept separate from the agency's personnel function, to avoid conflicts 
of interest or the appearance of such conflicts. Moreover, MD-110 
states that separating the agency's representatives and the offices 
responsible for defending the agency against EEO complaints from those 
responsible for conducting EEO complaint investigations enhances the 
credibility of the EEO office and the integrity of the EEO complaint 
process. 

At least three-quarters of plaintiffs' attorneys and respondents from 
EEOC indicated that strengthening independence for EEO directors and 
EEO investigators was very or extremely important. Further, several EEO 
practitioners believe that agencies should adhere more clearly to 
existing EEOC requirements on delineating the roles of the agency 
general counsels in the EEO complaint process. For example, an EEO 
director stated that EEO legal advisors should be separate and distinct 
from the agency's legal office and should report to the head of the 
civil rights office instead of to agency legal counsel. Several EEO 
practitioners also stated that agency human resources offices should be 
required to avoid activities or actions that may be construed as having 
undue influence. An AJ favored having clear firewalls between the human 
resources and EEO offices when investigating complaints. In its March 
2003 proposal, the coalition of civil rights employee advocates and 
other stakeholder groups recommended that EEOC's regulations and MD-110 
be changed to clearly prohibit agency actions that interfere with the 
independent judgment of the EEO investigator. Noting that stakeholders 
have complained of intrusion in the operations of the agency EEO office 
by staff responsible for defending the agency against complaints of 
discrimination and that such intrusion could affect the impartiality of 
the investigation, EEOC officials stated that EEOC has draft guidance 
on the intrusion into the EEO process by agency counsel, especially in 
the informal part of the process, which is being reviewed by the 
commissioners. 

Because of the concern that the practice of allowing an agency to 
investigate a complaint against itself can represent either a clear 
conflict of interest or the appearance of such conflict, practitioners 
cited filing complaints directly with EEOC as a means of avoiding such 
conflicts. Allowing such filings would alter the current administrative 
complaint process. Stakeholders cited several advantages to having EEOC 
conduct investigations. One advantage would be its potential to reduce 
concerns regarding independence, conflicts of interest, and perceptions 
of unfairness surrounding the existing federal EEO complaint process. 
Another advantage stakeholders cited was EEOC's potential to leverage 
its expertise, which in addition to administering the federal sector 
EEO process, promulgating regulations, providing EEO training, and 
collecting governmentwide data on EEO activities, also includes 
investigating private sector complaints of discrimination. According to 
stakeholders, potential disadvantages of transferring investigations to 
EEOC included: 

* adding an immense burden along with insufficient resources for EEOC 
to handle the larger workload, which would add more time to the 
complaint process and compound the time it takes EEOC to make decisions 
in EEO complaint processing, and: 

* creating tension between the various roles the agency is responsible 
for when one agency is afforded too many functions (e.g., 
investigations, decisions, and appeals) under the EEO process, which 
may impair neutrality, fairness, and accountability. 

EEOC officials noted that an overwhelming number of stakeholders who 
testified at the September 7, 2006, commission meeting or participated 
in focus groups conducted after that meeting recommended that EEOC take 
over the investigative function in its entirety from the agencies or 
that some type of independent body apart from EEOC assume this 
function.[Footnote 30] According to EEOC officials, stakeholders cited 
the conflict of interest perception and agencies' failure to complete 
their investigations in a timely manner as the principal reasons. EEOC 
also noted its belief that having it conduct the federal sector 
investigations would also bring efficiency, uniformity, and quality to 
the process as the commission would either hire a cadre of 
investigators dedicated to the federal sector or possibly act as a 
conduit for contract investigations. In the past, EEOC stated that 
fiscal realities have prevented it from assuming responsibility for all 
federal sector investigations, noting that in fiscal year 2008, 
agencies conducted over 11,000 investigations at a cost of a little 
more than $36 million. Thus, according to EEOC officials, the resource 
implications of EEOC assuming the investigative function would be 
considerable, and the various ways of funding investigations by EEOC 
need further study. 

Several EEO practitioners mentioned addressing independence through the 
use of contractors for conducting investigations and drafting FADs. The 
Postal Service's Office of Inspector General reported that the Postal 
Service contracts investigations to enhance the independence and 
neutrality of the EEO administrative process and to improve the overall 
quality and efficiency of investigations.[Footnote 31] The report 
states that a single office from the Postal Service National EEO 
Investigative Services Office oversees investigations and contract FAD 
writers. This report did not address the quality of the investigations. 
As mentioned earlier, it is important that agencies review the quality 
of contract investigations. 

Enhancing Knowledge and Skills: 

In its 2004 report on federal sector EEO investigations and cost, EEOC 
cited the importance of federal agencies having EEO programs staffed 
with employees who have the necessary knowledge, skills, and abilities 
to help reduce the time it takes to conduct investigations. More than 
three-quarters of our survey respondents from the agencies and EEOC as 
well as plaintiffs' attorneys pointed to the importance of 
investigators enhancing their current level of knowledge and skills in 
the federal EEO complaint process. Almost three-quarters of respondents 
cited enhancing the knowledge and skills of EEO directors and agency 
management as very or extremely important, and about two-thirds of 
respondents cited enhancing the knowledge and skills of EEO counselors 
as very or extremely important. Several EEO practitioners offered 
suggestions for enhancing the knowledge and skills of EEO staff. For 
example, a plaintiffs' attorney offered that counselors should be 
required to spend at least 8 hours observing an experienced counselor 
before providing counseling. EEOC's MD-110 requires at least 32 hours 
of counselor training before providing counseling as well as 8 hours of 
continuing annual training.[Footnote 32] As for investigators, another 
plaintiffs' attorney, noting that the minimum requirements in EEOC 
guidance for investigators is insufficient, stated that EEOC should 
expand the minimum training and experience requirements and require 
additional annual continuing education. Similar to the training 
required for counselors, MD-110 also requires at least 32 hours of 
investigator training before conducting investigations as well as 8 
hours of continuing annual training. Several practitioners and 
stakeholders suggested that investigators should receive some kind of 
certification. One practitioner recommended that EEOC certify 
individual investigator credentials through a combination of agency- 
provided training or by licensing training programs that meet EEOC- 
established minimum requirements, and require every investigator, 
whether in-house agency employee or contract investigator, to apply for 
and be certified as meeting the minimum requirements. 

Some respondents said that their organizations had improved training 
for EEO staff. For example, an EEO director reported that her agency 
has standardized its basic and advanced EEO counselor training class. 
The director's office has coordinated with the agency's ADR office and 
office of inspector general to participate in the training. All bureaus 
send counselors to the same course, and counselors are issued 
credentials at the end of the training by the agency. An EEO counselor 
reported that her agency trained all EEO specialists to be EEO 
counselors and investigators and to write dismissals and FADs. This 
practitioner noted that providing all EEO staff with all available EEOC 
training can enhance their understanding of the process from start to 
finish, thereby increasing completeness, accuracy, and effectiveness of 
complaint processing. An EEO counselor from another agency reported 
that at her agency there is a focus on developing the legal analysis 
skill set of EEO specialists who process complaints. During team 
meetings, the EEO specialists review intake decisions and FADs that 
they have prepared, and the specialists brief the team on the legal 
analysis conducted and the rationale for decisions. Counselors attend 
these meetings to increase their understanding of the bases for 
dismissal, the types of questions that need to be asked during the 
counseling inquiry, and the legal implications of new case decisions. 

Increasing Authority of EEO Directors and AJs: 

Almost all EEOC practitioners and plaintiffs' attorneys and a majority 
of agency respondents indicated that it would be important to increase 
the current level of authority of EEOC AJs, and most respondents cited 
increasing authority for agency EEO directors as very or extremely 
important. EEO practitioners cited a need for subpoena power for AJs, 
who currently do not have this authority. In addition, EEO 
practitioners expressed the desire for expanded authority for (1) EEO 
directors to dismiss complaints of discrimination and (2) EEOC to order 
discipline against managers who discriminate. Practitioners also 
expressed a desire for EEOC to make sufficient use of its authority to 
sanction agencies that do not complete investigations on time. 

Several EEO practitioners felt that allowing AJs to subpoena witnesses 
would improve the EEO complaint process. An agency legal counsel cited 
cases where the agency and complainant suffer when potential witnesses, 
such as those who are no longer with the agency, refuse to testify. 
Until AJs are given such power, a plaintiffs' attorney felt that the 
administrative complaint process cannot serve its intended purpose as a 
viable alternative to litigation in federal courts. While EEOC AJs have 
authority to sanction an agency for failure to produce an approved 
witness who is a federal employee,[Footnote 33] they do not have the 
authority to subpoena the statements of individuals and therefore have 
no mechanism with which to compel the testimony of witnesses who are 
not current federal employees. With respect to subpoena power, 
according to MSPB officials, the board has delegated to its regional 
directors/chief administrative judges and AJs the authority to subpoena 
witnesses.[Footnote 34] EEOC officials also favor granting EEOC's AJs 
subpoena power, noting that AJs have often voiced the belief that their 
lack of subpoena power is a significant defect in the hearings process, 
in many cases hindering their ability to conduct full and fair 
hearings. For instance, without subpoena authority, it is often 
difficult for AJs to compel a potential witness for the complainant, 
such as an agency's outside medical personnel or a contractor employee, 
to testify on the complainant's behalf. Although AJs use a variety of 
means to try to persuade former employees, contractors, and outside 
medical personnel to testify, it would be more efficient if AJs 
possessed subpoena authority. EEOC officials stated that having 
subpoena authority would further ensure that AJs have access to all 
relevant evidence. However, according to EEOC's Office of Legal 
Counsel, granting subpoena power to AJs would potentially require a 
statutory change.[Footnote 35] According to a senior EEOC official, 
EEOC has not sought such a statutory change. 

An example of expanded authority for EEO directors relates to the 
dismissal of complaints of discrimination. EEOC regulations set out 
circumstances under which complaints can be dismissed,[Footnote 36] 
including complaints that fail to state a claim of discrimination. In 
this regard, EEOC has consistently reversed agencies' dismissals for 
failure to state a claim where the agency dismissal is based on the 
agency's view of the ultimate merit of the complaint 
allegations.[Footnote 37] An EEO investigator stated that EEO directors 
should be given the authority to make a merit analysis to dismiss those 
claims that are frivolous and show self-defeating evidence to ensure 
quicker and less costly processing of cases.[Footnote 38] In cases that 
are dismissed, complainants could still appeal such decisions to EEOC. 

As for the authority to order discipline for managers who have been 
found to have discriminated, EEOC's practice is to advise rather than 
direct agencies to consider disciplining such managers. In addition, 
the No FEAR Act requires agencies to report information annually on 
disciplinary actions taken.[Footnote 39] The act also requires the 
President's designee, the Office of Personnel Management (OPM), to 
undertake a study of best practices among agencies for taking 
disciplinary action for conduct inconsistent with antidiscrimination 
laws and whistleblower protection laws.[Footnote 40] OPM issued the 
advisory guidelines in September 2008; agencies have not yet reported 
actions they have taken consistent with these guidelines. 

EEOC regulations provide for sanctions against parties for failure 
(without good cause shown) to respond fully and in a timely fashion to 
an order of an AJ, to discovery requests, or to requests for the 
attendance of witnesses. Sanctions include the drawing of adverse 
inferences against, or exclusion of other evidence offered by, the 
noncomplying party, issuing a decision fully or partially in favor of 
the opposing party, or such other actions as appropriate.[Footnote 41] 
Specifically, AJs may impose monetary sanctions where the agency has 
failed to complete an investigation that is timely, adequate, or both, 
including requiring agencies to bear the costs for the complainant to 
obtain depositions or other discovery.[Footnote 42] EEOC's OFO can also 
sanction agencies at the appellate level.[Footnote 43] Some 
practitioners stated that EEOC does not make sufficient use of its 
sanctioning authority. On the matter of sanctioning authority, EEOC 
officials stated that AJs are guided by OFO decisions on sanction 
authority, that the agency is considering issuing further guidance to 
AJs, and that it will include training on the appropriate use of 
sanctions in federal sector training of AJs to be held later in 2009. 

Increasing the Clarity of EEOC Regulations and Guidance and Consistency 
of EEOC Decisions: 

In commenting on the importance of increasing the clarity and 
consistency of antidiscrimination laws (e.g., Title VII of the Civil 
Rights Act), EEOC regulations and guidance (e.g., MD-110 and MD-715), 
and EEOC decisions (e.g., decisions by AJs and appellate attorneys), 
the majority of EEO practitioners responding felt that it was most 
important to increase the clarity and consistency of EEOC decisions. 
Primarily, practitioners indicated that increasing the consistency of 
decisions at several levels within EEOC was very or extremely 
important: decisions from EEOC's OFO appellate attorneys, decisions by 
AJs, and decisions resulting from requests for reconsideration of 
appeals decisions. An EEO investigator suggested that EEOC's OFO should 
index its decisions and cross-check them for consistency so that only 
those decisions that express a cogent, correct application of the law 
should be indexed and made available as precedent. According to a 
senior EEOC official, EEOC began to conduct quality reviews of AJ 
decisions in fiscal year 2007 by reviewing a sample of files from all 
offices to assess the legal adequacy of decisions and the consistency 
with case law as well as to determine whether time frames were met. The 
official said that EEOC officials share the results of the reviews with 
AJs through monthly conference calls and quarterly video conferences. 
In addition, according to EEOC, through a technical assistance group, 
EEOC staff visit selected field offices to review files for cases and 
decisions. 

Noting the importance of the AJ position, one practitioner stated that 
EEOC should establish better qualifications for its AJs, including a 
minimum of 5 years litigation or related EEO or civil rights experience 
and that the position should be given a higher grade to make the 
position more competitive. MSPB, which also employs AJs to hear and 
decide appeals from former and current federal employees, applicants 
for federal employment, and federal annuitants concerning any matter 
over which the board has appellate jurisdiction, hires AJs in the range 
of GS-13s through GS-15s and has established timeliness, quality, and 
production standards for their performance. At EEOC, AJs can be hired 
at the GS-11 to the GS-13 level with promotion potential to GS-14. EEOC 
officials stated that the agency recognizes that a range of experience 
is important to adjudicate complex federal employment cases. 

Some practitioners indicated that they would like EEOC to make changes 
to its regulations or guidance. For example, one practitioner, a 
plaintiffs' attorney, stated that EEOC should review its federal sector 
regulations with the aim of identifying and eliminating (or modifying) 
those provisions that undermine effectiveness and fairness. An agency 
legal counsel stated that EEOC must establish clear guidelines for the 
conduct of agency counsel and their role in the EEO process. 
Practitioners and stakeholders expressed the need for clarification 
regarding the dismissal of complaints, specifically addressing 
dismissals for (1) failure to state a claim (including complaints 
alleging a hostile work environment), (2) abuse of the process, and (3) 
failure to cooperate. 

Also, in its March 2003 proposal, the coalition of civil rights 
employee advocates and other stakeholder groups recommended that EEOC 
adopt uniform standards for what states a claim of employment 
discrimination. Under this recommendation, complaints could be 
dismissed on these grounds either at the agency, before the complaints 
are investigated, or after a hearing request is submitted. While noting 
that its regulations provide standards for dismissing complaints that 
do not state a claim and that based on case law, EEOC has also broadly 
construed what actions may constitute a claim, EEOC officials stated 
that the commission is considering recommendations by internal and 
external stakeholders to provide additional guidance. 

Improving Communication throughout the Complaint Process: 

EEOC MD-110 states that in the precomplaint process, counselors should 
create an atmosphere that is open to good communication and dialogue. 
EEOC regulations require agencies to establish ADR programs, and EEOC 
MD-715 encourages the widespread use of an ADR program that facilitates 
the early, effective, and efficient informal resolution of disputes. 
According to EEOC, such programs can help agencies to avoid the time 
and costs associated with more formal dispute resolution processes and 
improve workforce communication and morale. Almost all respondents 
indicated that improving communication during the informal or 
precomplaint phase, claim acceptance/dismissal, and complaint 
investigation was very or extremely important. Also, about three- 
quarters of respondents indicated that improving communication during 
ADR was very or extremely important. Several EEO practitioners 
suggested that ADR should be used more often in disputes or even made 
mandatory. For example, a plaintiffs' attorney offered that for ADR to 
be successful, agencies need to ensure that officials do not merely "go 
through the motion" on ADR but that an official at an appropriate level 
of authority represents management and that this official has 
settlement authority. In addition, in its March 2003 proposal, a 
coalition of civil rights employee advocates and other stakeholder 
groups recommended making ADR mandatory for managers in the informal 
and formal stages of the administrative process and for EEOC hearings. 

Several counselors reported that their agencies gave employees the 
option of using ADR in the informal and formal stages of the EEO 
complaint process as a means for resolving an EEO concern. According to 
one counselor, using ADR in this way focuses both parties on the 
objective of resolving the conflict rather than defending their 
respective positions. Another counselor reported that at her agency, at 
the time that contact is made with the informal EEO process, her agency 
gives employees the option--explained verbally and in writing--of 
traditional counseling or mediation (i.e., a type of ADR) when they 
initially begin the informal EEO process. Mediation is offered 100 
percent of the time at initial contact, and ADR may be offered again in 
the formal stage of the process if the case proceeds. This practitioner 
found that offering ADR services is helpful in resolving complaints at 
the lowest possible level. 

Almost universally, stakeholder groups believed that counseling should 
be done at agencies, and EEOC also favors leaving the counseling 
responsibilities with the agencies. Two stakeholders explained that EEO 
counselors who work in an agency possess a familiarity with the 
organization's operations, culture, and leadership and that keeping 
counseling at the agencies enables counselors to see problems firsthand 
while giving agencies opportunities to correct problems and demonstrate 
some commitment to EEO principles. EEOC officials stated that 
stakeholders have recommended that the commission ensure that during 
counseling, agencies provide better, more understandable, and more 
consistent information describing the EEO process and complainants' 
rights and responsibilities therein. 

In its 2008 performance and accountability report, EEOC noted that 
precomplaint EEO counseling and ADR programs addressed many employee 
concerns before they resulted in formal complaints. Of the 37,809 
instances of counseling in fiscal year 2007, about 56 percent did not 
result in a formal complaint because of either settlement by the 
parties or withdrawal from the EEO process. According to EEOC's 2007 
report, agencies' ADR offer, participation, and resolution rates varied 
widely. For example, the Postal Service offered ADR in about 93 percent 
of precomplaint counseling, while the other agencies' offer rate was 
about 71 percent, with some agencies not offering ADR in any counseling 
sessions. The governmentwide ADR participation rate in fiscal year 2007 
was 48 percent. The Postal Service, which requires management to 
participate, reported the highest rate of ADR participation (about 76 
percent) compared with the average participation rate of about 25 
percent among other agencies. According to EEOC's 2007 annual report, 
complainants rejected ADR offers 10 times more often than agencies. 
Similarly, the Postal Service had an overall resolution rate of about 
75 percent, while the rate for other agencies was about 46 percent. 

EEOC officials reported taking a number of actions to encourage more 
use of ADR, such as updating EEOC's federal sector ADR Web page to 
improve the delivery of information on the benefits of ADR and ADR best 
practices; providing technical assistance through e-mail, telephone 
contacts, and on-site visits, as requested; and participating in 
federal ADR work groups and agency conferences. The commission also 
reported establishing the Federal Appellate Settlement Team (FAST) 
Program to utilize ADR techniques to resolve EEO appeals that have been 
filed in OFO. The FAST Program focuses on appeals that have been 
decided based on FADs on the merits. According to EEOC, qualified EEOC 
staff, who are experts in federal sector EEO law, conduct ADR to assist 
parties in reaching a mutually satisfactory agreement. Participation in 
the FAST Program is voluntary for both parties. 

Two practitioners made suggestions that would further communication 
outside of an ADR program. One described a precomplaint resolution 
program to address all issues involving the terms and conditions of 
employment, including EEO complaints. This practitioner stated that the 
program generally has been successful in resolving issues that do not 
belong in the EEO process, addressing matters before they become formal 
EEO complaints, and correcting situations that could result in a 
hostile environment or harassment claims. An EEO counselor suggested 
increased training in conflict management and effective communication 
for employees and supervisors as well as including conflict management 
in both performance plans to focus the responsibility for resolving 
everyday conflicts on the parties themselves, rather than bringing in a 
third party. 

Reinforcing Commitment at All Levels in the EEO Complaint Process: 

Our prior work has shown that commitment from top management is key to 
successful management improvement initiatives. For example, our work on 
leading diversity management identified top management commitment as a 
fundamental element in the implementation of diversity management 
initiatives.[Footnote 44] Similarly, EEOC MD-715 emphasizes the 
importance of demonstrating commitment to equality of opportunity for 
all employees and applicants for employment that is communicated 
throughout the agency from the top down. Agency heads have many ways to 
demonstrate commitment to equal opportunity and a workplace free of 
discriminatory harassment, but one important way is to provide the EEO 
director with "a seat at the table," that is, access to the agency 
head. Having the EEO director report to the head of the agency sends a 
message to employees and managers about the importance of and 
commitment to the EEO program. An EEO practitioner stated that agencies 
should adhere more clearly to existing EEOC requirements on delineating 
the reporting lines of authority for EEO directors. 

EEOC advises that following each yearly submission of the MD-715 report 
to EEOC, EEO directors should present the "state of the EEO program" to 
the agency head outlining, among other things, the effectiveness, 
efficiency, and legal compliance of the agency's EEO program. EEOC 
reported in its fiscal year 2007 annual report that 63 percent of EEO 
directors presented such a report. EEOC also emphasized that ensuring 
that the EEO professionals are involved with and consulted on 
management and deployment of human resources, providing managers with 
training in EEO-related matters, having managers and employees involved 
in implementing the EEO program, and informing employees of the EEO 
program are other important aspects of demonstrating commitment to the 
EEO program. 

A majority of respondents indicated that it would be very or extremely 
important for agency management, agency EEO directors, and EEO 
investigators to reinforce their current level of commitment to the 
federal EEO complaint process. According to one EEO practitioner, 
agencies need to make the EEO function a priority, in terms of 
importance, expectations, and oversight. Another demonstrated means of 
support from the agency head, as one practitioner stated, is adequate 
funding and staffing of the EEO function within the agency. For 
example, an EEO counselor indicated that agencies have to move away 
from "dumping" agency employees in EEO offices and instead staff those 
offices with individuals who have the appropriate skill sets, perhaps 
even legal backgrounds, to develop credible programs. According to a 
plaintiffs' attorney, EEO must receive support from agency heads, and 
EEOC's most recent federal workforce report shows that a significant 
percentage of agency heads did not issue an annual statement supporting 
EEO as recommended by EEO guidance. The practitioner suggested that 
agency heads who could not bother to issue a statement certainly could 
not be bothered to make EEO an agency priority. In its fiscal year 2007 
annual report, EEOC reported that of the 167 agencies and subcomponents 
that submitted fiscal year 2006 MD-715 reports, 68 percent of the 
agencies issued EEO policy statements, an increase over the 50 percent 
of the 158 agencies and subcomponents that submitted MD-715 reports in 
fiscal year 2005. 

Raising Other Options for Changing the EEO Complaint Process: 

Stakeholders raised other options for changing how EEO complaints are 
processed that were outside of the eight factors that we used to group 
participant and stakeholder responses and solutions. For example: 

* Some stakeholders noted the considerable amount of time that can 
elapse from the filing of a formal EEO complaint through the 
administrative process to the potential conclusion of the matter in 
federal court and suggested that complainants be given the choice of 
using the administrative or the judicial process but not be permitted 
to use both. Under this option, stakeholders provided that the 
administrative process could afford the right to a judicial appeal of 
that administrative decision to a U.S. federal court of appeals. 

* Other stakeholders, concerned with the multiple forums that 
complainants have available, suggested an administrative tribunal, 
which could handle all variety of issues, including discrimination, 
prohibited personnel practices, and unfair labor practices. 
Stakeholders indicated that this could avoid the problem of a matter 
going to more than one forum and could avoid the difficulty encountered 
(and mistakes made in assessing the nature of a complaint) by a 
complainant when faced with making a forum choice at the outset. 

* Some stakeholders raised concern over the number of complaints 
accepted into the process that should not be (i.e., frivolous, not 
discrimination) and supported having EEO complaints go through a 
similar process as unfair labor practice allegations.[Footnote 45] With 
unfair labor practice allegations, an investigation by an independent 
third party serves to eliminate matters that should not go forward 
before a full-scale hearing is afforded. 

Some stakeholders observed that under options in which an individual 
goes directly to a third party with allegations, the adversarial nature 
of the process could potentially increase. One stakeholder observed 
that such options could require mandatory ADR to minimize this 
potential effect. Concern was also raised by another stakeholder that 
some options may serve to preclude lower-graded employees from pursuing 
claims where the option does not provide for a cost-free investigation. 

Improving Equal Opportunity in the Federal Workforce: 

Through the use of several initiatives introduced in fiscal year 2008, 
EEOC is seeking to help federal agencies achieve model EEO programs 
where they can make employment decisions that are free from 
discrimination and that remove barriers to free and open workplace 
competition. One such tool is EEOC's EEO Program Compliance Assessment 
(EPCA), a type of scorecard that is divided into two sections. In the 
EEO program activities section, EEOC evaluated agencies on selected 
indicators under each model element of MD-715 using fiscal year 2006 
data and reports. Among the indicators measured were timeliness of 
investigations, FADs, and submission of complaint files for hearings 
and appeals. EEOC also measured agencies' use of ADR. EPCA does not 
evaluate agencies on the quality of their investigations, but according 
to EEOC officials, the Commission is currently examining how to 
incorporate agencies' quality of investigations as a performance 
measure under EPCA. In the EEO program outcome indicators section, EPCA 
includes selected responses from OPM's fiscal year 2006 Federal Human 
Capital Survey to five survey questions as "proxy outcome indicators" 
to gauge each agency's progress in creating a fair and inclusive 
workplace. The outcome indicators section also includes workforce 
analyses based on race, national origin, gender, and targeted 
disabilities that show how a particular agency's workforce is composed 
by major occupation and compare it to the civilian labor force; 
provides an odds ratio analysis on promotions in the senior grade 
levels; and shows agencies how they compare to the federal government 
as a whole on various climate and other issues. During our audit work, 
agencies' EPCA results were available to the public on EEOC's Web site; 
however, EEOC has since removed the results. According to a senior EEOC 
official, EEOC is evaluating the appropriate use of the program 
indicators in EPCA in an attempt to ensure that the indicators chosen 
are accurate measures of the performance of agency EEO programs. The 
official did not provide a time frame for this evaluation. 

In addition to EPCA, EEOC stated in its fiscal year 2008 performance 
and accountability report that a key strategy in its efforts to be more 
responsive to federal agencies was the continued development of its 
relationship management pilot. This initiative was first piloted in 
fiscal year 2004 and involves EEOC personnel partnering with EEO staff 
in 11 agencies in a consultative relationship to improve customer 
service and help them successfully implement the essential elements of 
MD-715's model EEO program. In addition to these activities, EEOC staff 
provide trend analysis feedback to selected agencies on their MD-715 
submissions, and EEOC is conducting on-site reviews of five agencies 
with high underrepresentation of racial minorities at the Senior 
Executive Service level and of another agency to investigate a spike in 
retaliation complaints. 

Finally, in June 2008, EEOC announced a proposal that brought together 
previous EEOC commissioners' efforts.[Footnote 46] Among the changes 
contained in the notice, are the following: 

* A requirement that agency EEO programs comply with EEOC 
regulations,[Footnote 47] MDs (MD-110 and MD-715), and management 
bulletins and that EEOC will review agency programs for compliance. 
[Footnote 48] 

* Permission from EEOC for agencies to conduct pilot projects--usually 
for not more than 12 months--for processing complaints in ways other 
than those prescribed in EEOC regulations (Part 1614). 

* A requirement that an agency that has not completed an EEO 
investigation within the 180-day time limit notify the complainant in 
writing that the investigation is not complete and when it will be 
completed and that the complainant has the right to request a hearing 
or file a lawsuit.[Footnote 49] 

The proposals for EEOC to review compliance with its regulations, MDs, 
and other guidance and to provide additional notification to 
complainants have the potential for an immediate impact on the EEO 
complaint process. By reviewing compliance, EEOC could address several 
of the factors that EEO practitioners indicated impede the timely 
processing of complaints and independence. For example, requiring 
agency compliance with regulations and MDs delineating the reporting 
lines of authority for EEO Directors and the roles of agency offices of 
general counsel in the EEO complaint process could help strengthen the 
independence of EEO professionals to fulfill their responsibilities. As 
we stated earlier, EEOC stated its belief that a requirement to notify 
the complainant in writing about complaints that have not been 
investigated within 180 days may provide an incentive for agencies to 
complete investigations in a timely manner. 

Pilot projects could provide helpful data with which EEOC could make 
decisions about future improvements to the federal sector EEO complaint 
process. For example, the Department of Defense (DOD) had the authority 
to operate pilot programs outside of the procedural requirements 
prescribed by EEOC to improve processes for the resolution of EEO 
complaints by civilian employees of DOD.[Footnote 50] DOD operated 
three such programs between 2005 and 2007, although only one of the 
three DOD pilot programs met the criteria of "operating outside of EEOC 
regulations." 

The other two operated within the framework of EEOC regulations by 
increasing the use of ADR to informally settle disputes before they 
became formal complaints. Our prior work on the DOD pilot programs 
showed the importance of having a sound evaluation plan, including key 
features that are essential for assessing the performance of the pilot 
programs and making determinations regarding the wider applications of 
the pilot programs.[Footnote 51] 

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

* Well-defined, clear, and measurable objectives. 

* Measures that are directly linked to the program objectives. 

* Criteria for determining pilot program performance. 

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

* A data analysis plan for the evaluation design. 

* A detailed plan to ensure that data collection, entry, and storage 
are reliable and error free.[Footnote 52] 

In addition to the importance of having a strong evaluation program, 
our work on the DOD pilots also identified lessons learned that can be 
instrumental for EEOC and potential pilot program officials as they 
consider whether to institute pilot projects to address concerns that 
have been identified with the EEO complaint process. For example, it is 
important to (1) involve senior management and stakeholder groups in 
designing, implementing, and evaluating the pilot program to help with 
buy-in; (2) emphasize the importance of customer feedback; and (3) 
include mechanisms to solicit such feedback. 

As of May 2009, EEOC had not issued its notice of proposed rulemaking 
outlining such specific features as the number of pilot projects, how 
they will operate, or how they will be evaluated. The solutions that 
EEO practitioners and others have offered to improve the quality and 
timeliness of investigations may provide candidates for the pilot 
projects, allowing EEOC to make data-driven decisions about changes to 
the federal EEO complaint process. 

Conclusions: 

Equal opportunity in the federal workplace is key to enabling federal 
agencies to meet the complex needs of our nation. Agencies must make a 
firm commitment to the principles of equal opportunity and make those 
principles a fundamental part of agency culture so that all employees 
can compete on a fair and level playing field and have the opportunity 
to achieve their potential, without regard to race, color, religion, 
national origin, age, gender, or disability. Holding agencies 
accountable for adhering to EEOC regulations and guidance will help 
EEOC to ensure that the EEO complaint process is operating as intended. 
EEO practitioners and others have identified shortcomings in the 
operation of the federal EEO process at both the agencies and EEOC. 
Some of these shortcomings could potentially be addressed through 
additional guidance that EEOC has stated it intends to issue in such 
areas as the appropriate relationship between EEO offices and offices 
involved in defending the agencies against discrimination complaints as 
well as what constitutes a claim; it will be important for the 
commission to follow through with this guidance. Additionally, EEOC is 
considering allowing agencies to conduct pilot projects for processing 
complaints outside of EEOC regulations. If agencies were to participate 
in pilot projects, it would be important for them to have well- 
developed evaluation plans that include key evaluation features. Pilots 
that are undertaken without sound evaluation plans increase the 
likelihood of insufficient or unreliable data, limiting confidence in 
pilot project results. Without confidence in pilot project results, 
EEOC will be limited in its decision making regarding the pilot 
projects, and to the extent that proposed changes in the federal EEO 
complaint process require congressional action, Congress will be 
limited in its decision making about the pilot projects' potential 
broader application. 

Recommendations for Executive Action: 

If pilot projects are approved by EEOC, we recommend that the Acting 
Chairman of EEOC take the following two actions: 

* Direct pilot project officials to develop for each pilot project an 
evaluation plan that includes key features to improve the likelihood 
that pilot project evaluations will yield sound results, such as: 

- well-defined, clear, and measurable objectives; measures that are 
directly linked to the program objectives; criteria for determining 
pilot program performance; 

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

- a data analysis plan for the evaluation design; and: 

- a detailed plan to ensure that data collection, entry, and storage 
are reliable and error free. 

* Direct commission staff to review and approve pilot projects' 
evaluation plans to increase the likelihood that evaluations will yield 
methodologically sound results, thereby supporting effective program 
and policy decisions. 

Agency Comments: 

We provided a draft of this report to EEOC for review and comment. In a 
June 24, 2009, letter, EEOC's Acting Chairman agreed with our 
recommendations and stated that EEOC plans on implementing them. The 
Acting Chairman further stated that EEOC is committed to improving the 
timeliness of complaint processing, enhancing the quality of the 
investigative reports as well as the hearing and appellate decisions, 
and ensuring greater accountability by all parties in the federal 
sector complaint process. EEOC's letter is reprinted in appendix III. 

We are sending copies of this report to the Attorney General; the 
Acting Chairman, Equal Employment Opportunity Commission; and 
interested congressional committees and subcommittees. The report also 
is available at no charge on the GAO Web site at [hyperlink, 
http://www.gao.gov]. 

Please contact me at (202) 512-6806 or stalcupg@gao.gov if you or your 
staffs have any questions about this report. Contact points for our 
Offices of Congressional Relations and Public Affairs may be found on 
the last page of this report. GAO staff who made major contributions to 
this report are listed in appendix IV. 

Signed by: 

George H. Stalcup: 
Director, Strategic Issues: 

List of Congressional Committees: 

The Honorable Joseph I. Lieberman: 
Chairman: 
The Honorable Susan M. Collins: 
Ranking Member: 
Committee on Homeland Security and Governmental Affairs: 
United States Senate: 

The Honorable Daniel K. Akaka: 
Chairman: 
The Honorable George V. Voinovich: 
Ranking Member: 
Subcommittee on Oversight of Government Management, the Federal 
Workforce, and the District of Columbia: 
Committee on Homeland Security and Governmental Affairs: 
United States Senate: 

The Honorable Edolphus Towns: 
Chairman: 
The Honorable Darrell Issa: 
Ranking Member: 
Committee on Oversight and Government Reform: 
House of Representatives: 

The Honorable John Conyers Jr. 
Chairman: 
The Honorable Lamar Smith: 
Ranking Member: 
Committee on the Judiciary: 
House of Representatives: 

The Honorable Stephen F. Lynch: 
Chairman: 
The Honorable Jason Chaffetz: 
Ranking Member: 
Subcommittee on Federal Workforce, Postal Service, and the District of 
Columbia: 
Committee on Oversight and Government Reform: 
House of Representatives: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

As agreed with interested congressional committees, this report 
provided the results of our analysis of (1) factors that practitioners 
identified that they believe impede the prompt, fair, and impartial 
processing of federal equal employment opportunity (EEO) complaints and 
(2) actions that practitioners and other stakeholders think could be 
taken to address those factors. We also included information on what 
the Equal Employment Opportunity Commission (EEOC) is doing to improve 
equal opportunity in the federal workforce. 

Objectives 1 and 2: 

For the purposes of this review, we surveyed individuals whose work 
roles and responsibilities put them in regular contact with the federal 
EEO complaint process, thereby ensuring their familiarity with and 
knowledge about the process. Based on prior GAO work on the EEO 
process, we identified seven categories of individuals familiar with 
the federal EEO complaint process. We termed these individuals "EEO 
practitioners" and collected their informed views concerning the EEO 
complaint process. We derived our seven categories of practitioners 
from three sources: individual agencies, EEOC, and the plaintiffs' 
attorney community. Agency practitioners we surveyed included the EEO 
directors responsible for administering agency EEO programs, EEO 
counselors responsible for reviewing the complainants initial 
allegations and advising them on their roles and responsibilities in 
the EEO process, EEO investigators responsible for investigating EEO 
complaints, and legal counsels responsible for advising and defending 
agencies against EEO complaints. EEOC practitioners included the EEOC 
administrative judges (AJ) responsible for adjudicating complaints, 
conducting hearings, and issuing decisions on EEO complaints, and EEOC 
appeals attorneys responsible for processing appeals of decisions. The 
plaintiffs' attorneys represent individual employees who filed EEO 
complaint cases. We obtained e-mail addresses, physical addresses, and 
telephone numbers for all EEO practitioners in order to contact them. 

Agency Selection: 

To attain a wide representation of agencies, we selected agency-level 
EEO practitioners from 17 agencies based on agency size, complaint 
activity, and investigation source (in-house versus contractor) as of 
fiscal year 2005.[Footnote 53] In an effort to obtain a sufficiently 
representative and diverse group of large, medium, and small agencies 
from which to begin our selection process, we focused on agencies that 
had reported at least 50 complaints filed in fiscal year 2005, the 
number of employees at agencies, and the mechanism the agencies used to 
investigate complaints--primarily agency employees, contract 
investigators, or a mix of in-house and contract investigators in 
fiscal year 2005. The 17 agencies that we selected on the basis of the 
number of complaints filed and the mechanism for EEO investigations 
were the Departments of Agriculture, Commerce, Defense, Education, 
Energy, Health and Human Services, Homeland Security, the Interior, 
Justice, Transportation, the Treasury, State, and Veterans Affairs; the 
Environmental Protection Agency; the General Services Administration; 
the Office of Personnel Management; and the U.S. Postal Service. EEO 
complaints filed at the selected 17 agencies in the aggregate 
represented 91 percent of EEO complaints filed governmentwide in fiscal 
year 2005. 

We decided against including the Department of Justice (Justice) after 
agency officials said that their practitioners' survey responses first 
would have to undergo vetting within the agency. Under those 
conditions, we could not allow Justice practitioners to participate in 
the survey. We so advised Justice representatives during a telephone 
conference, during which we also proposed interviewing Justice 
officials later in the engagement about possible changes to the EEO 
complaint process. Justice representatives agreed to participate under 
those conditions. The decision not to include Justice left us with 16 
agencies that in the aggregate represented 87.5 percent of EEO 
complaints filed governmentwide in fiscal year 2005. 

Finally, for a total of 17 agencies, we included EEOC because of the 
roles that its AJs play in adjudicating hearings of EEO complaints and 
its appeals attorneys play in adjudicating appeals of decisions on 
those complaints. 

EEO Practitioner Selection: 

To recruit EEO practitioners from the 16 agencies, we contacted EEO 
directors at these agencies by telephone and e-mail, informed them 
about the nature of our review, requested their participation in the 
survey, and asked them to nominate EEO counselors, investigators, and 
agency counsel. We contacted EEOC officials to recruit EEOC AJs and 
appeals attorneys. We also contacted plaintiffs' attorneys from the 
private sector. The selected practitioners represent different parts of 
the complaint process, and some of the practitioners may only be 
familiar with their part of the process. 

We recruited an equal number of individuals from each category of EEO 
practitioners to attain a wide representation of agencies and reduce 
possible bias in the final results. To achieve a more independent 
distribution of agency practitioners, we selected our final list of 
practitioners from 16 agencies (not including EEOC) in an effort to 
reduce the risk of collaborative responses caused by horizontal 
integration. We recruited no more than 3 practitioners for each of the 
four categories of agency practitioners (i.e., directors, counselors, 
investigators, and agency counsels) to lessen the likelihood that any 
of the agencies would have all categories of practitioners and ensure a 
broader perspective on the issues. In all, we selected 36 
practitioners, 9 from each group of agency practitioners. We did not 
select a member of every practitioner group from every agency. 

In addition to the agency practitioners, we also sought the 
perspectives of practitioners from EEOC, which administers and provides 
guidance and oversees the federal EEO complaint process. We asked EEOC 
supervisors and nonsupervisors to nominate EEOC AJs and appeals 
attorneys to participate in the survey. To recruit AJs, we also 
considered recommendations from EEOC management and from an 
organization representing EEOC AJs, contacted nominees and asked them 
to participate in the survey and to recommend other AJs for 
participation, and then contacted the nominees to request their 
involvement. We selected nine EEOC appeals attorneys and nine EEOC AJs. 

Finally, we selected nine plaintiffs' attorneys after considering 
relevant information from other EEO practitioners and people in the EEO 
community. 

To address our objectives, we primarily used two Web-based surveys to 
systematically collect and distill knowledge from the EEO practitioners 
we had selected.[Footnote 54] 

Phase I Survey: 

Our first Web-based survey consisted of open-ended questions that were 
designed to capture the practitioners' narrative responses. 
Specifically, we asked practitioners three questions: (1) Based on your 
experience as an EEO practitioner, what are the most important factors 
you have observed that materially impede the prompt, fair, and 
impartial processing of complaints at your agency, or at EEOC, and how 
have those factors impeded complaint processing? (2) What specific 
changes could be made to address the factors you listed above, in order 
to promote the prompt, fair, and impartial processing of federal EEO 
complaints? (3) What changes have been made to the EEO complaint 
process at your agency? What effects did these changes have on the 
prompt, fair, and impartial processing of EEO complaints at your 
agency?[Footnote 55] 

Before launching each survey, we conducted a series of pretests with 
internal and external EEO practitioners, including some actual survey 
respondents. The goals of the pretests were to check that (1) the 
questions were clear and unambiguous and (2) the terminology was used 
correctly. To conduct pretests, we selected representatives from 
several practitioner categories, provided them with survey drafts for 
their review, and interviewed them either in person or by 
teleconference to obtain their opinions about the language, format, and 
tone of questions in the survey. Based on the reactions of 
practitioners, we changed the survey content and format during 
pretesting as necessary. We also conducted usability tests that 
entailed checking each practitioner's password, user name, and link to 
ensure their operability before we launched the Web survey. 

To activate the survey, we posted it to the Internet. We notified the 
63 EEO practitioners of the availability of the questionnaire with an e-
mail message that contained a unique user name and password that 
allowed each respondent to log on and fill out a questionnaire while 
preventing respondents from gaining access to the surveys of others. 
Using their access information, practitioners could access the survey 
on the Internet at any time and could complete it at their convenience. 
If practitioners did not respond to the confidential link we provided, 
we accepted official submissions for responses in another format (e.g., 
e-mail). Access to the Phase I survey formally began on April 9, 2007, 
after which practitioners had approximately 8 weeks from April 2007 
through May 2007 to complete the survey. While the survey was ongoing, 
we wrote follow-up e-mails and made telephone calls to practitioners 
who did not initially respond to the survey to ensure that we made 
every effort to reach them. 

Of the 63 practitioners to whom we made the Phase I survey available, 1 
practitioner informed us that she did not work in one of our 
practitioner categories. As she was the only respondent from her 
agency, we sent the survey to another EEO practitioner at that agency. 
When we did not receive a response from another practitioner at another 
agency, we then sent the survey to an official from her agency, because 
that official's office is in charge of the discrimination complaint 
counseling and investigation processes and alternative dispute 
resolution. Thus, we selected 65 practitioners to participate in the 
Phase I Web-based survey. By June 2007, of the 65, 62, or about 95 
percent of the EEO practitioners, had completed the Phase I survey. 
Responses to the survey express only the views and attitudes of the 
practitioners. 

Once the Phase I survey was complete, we conducted a content analysis 
of practitioners' open-ended narrative responses to that survey. We 
developed a coding system that was based on the type of practitioner, 
the individual respondent, sequential numbers to identify the response, 
and the type (solution or factor) of response. We assigned individual 
codes to each sentence or paragraph provided by each practitioner. 
Based on our content analysis of Phase I responses, we developed a list 
of eight broad categories of factors--accountability, knowledge and 
skills, authority, independence, commitment, resources, communication, 
and laws and guidance--into which we grouped the responses. We also 
included "Other" and "Not applicable" categories where we placed that 
very small number of responses that did not fit under the eight 
factors.[Footnote 56] Some Phase I survey responses may have addressed 
multiple issues and so may have been classified into more than one of 
these factors. 

We did not assess the validity of the practitioners' views of 
impediments or solutions to the EEO complaint process or evaluate the 
effectiveness of initiatives that agency EEO practitioners said their 
agencies had implemented to improve their complaint processes. We 
report the views of practitioners who are knowledgeable of the federal 
EEO complaint process, but these views do not represent the official 
views of the 17 agencies. In addition, the practitioners' views cannot 
be generalized to all federal agencies and EEO practitioners for some 
or all of the factors identified. 

Phase II Survey: 

After categorizing all responses according to the eight broad factors, 
we used the results as a basis for developing the closed-ended 
questions that made up the Phase II survey and asked practitioners to 
rank on a scale of 1 through 8 the solutions they considered to be most 
important for improving the current federal EEO complaint process. 

As we had done for the Phase I survey, we conducted pretests of the 
Phase II survey with practitioners to ensure that our questions were 
clear and unambiguous and that the terminology was being used 
correctly. For pretest subjects, we selected representatives from each 
of the practitioner categories and included some actual survey 
respondents. We provided them with survey drafts for their review and 
interviewed them in person or by telephone. We modified the draft 
survey to address feedback we received from pretesters. 

The Phase II survey formally began on January 10, 2008. We sent the 
survey to the 62 EEO practitioners who responded to the Phase I survey. 
Survey respondents took approximately 8 weeks, from January 2008 
through February 2008, to complete the second phase of the survey. We 
wrote follow-up e-mails and made numerous telephone calls to contact 
practitioners who did not initially respond to the survey to ensure 
that we obtained responses from as many practitioners as possible. In 
all, 56, or about 90 percent, of the 62 practitioners completed the 
Phase II survey, which refines the results of the Phase I survey by 
asking respondents to provide their views as to where directed 
improvements in the EEO complaint process for each of the eight broad 
factors from the Phase I survey could have the greatest effect. The 
Phase II survey asked respondents to rank each of the eight factors 
identified in the Phase I survey from highest to lowest in terms of 
importance for improving the federal EEO complaint process. Once 
respondents completed the Phase II survey, we computed overall rankings 
of the factors according to the order of frequency in which respondents 
ranked them as most, second most, or third most important. The views 
expressed by the survey respondents do not represent the views of GAO. 

Discussions with Stakeholders: 

We also gathered information to address our second objective by 
interviewing representatives from a variety of stakeholder 
organizations in the federal EEO complaint process, including federal 
employee unions, federal executive and managers associations, agency 
attorneys' associations, and federal employee organizations, to obtain 
their views regarding possible changes that could be made to the 
federal EEO complaint process and the advantages and disadvantages of 
implementing such changes. We selected these stakeholder organizations 
based on a literature search, recommendations from EEOC, and our 
professional judgment in an effort to compile a diverse list of 
organizations with involvement in EEO activities or that represented 
specific groups protected by EEO laws. The stakeholder organizations we 
contacted for this review do not represent all of the potential 
stakeholder organizations from specific groups protected by EEO laws. 

Using a preliminary list we developed, we obtained the names, street 
addresses, and e-mail addresses of officials from these organizations 
and conducted interviews with representatives from these organizations 
in their headquarters offices and in facilitated group meetings at GAO 
headquarters. Before conducting the stakeholder interviews, we e-mailed 
representatives a document that contained preliminary information from 
our Phase I survey and descriptions of several possible options for 
reassigning responsibilities for operating federal EEO investigations, 
counseling, hearings, and appeals to EEOC, another agency, or a 
hypothetical entity. We provided this information to enable 
stakeholders to review the document before interviews where it would 
serve as a point of discussion. During these interviews, we asked 
stakeholder organization representatives whether they thought our eight 
broad factors adequately captured the complex issues in the federal EEO 
complaint process and to identify the advantages and disadvantages of 
implementing the structural options that we had described for changing 
the EEO complaint process.[Footnote 57] We analyzed the views of these 
stakeholder organization representatives by reviewing their 
observations concerning our eight broad factors as well as their 
observations on the possible options for making changes to the EEO 
complaint process. 

Actions Taken by EEOC to Improve Equal Opportunity in the Federal 
Workforce: 

To identify actions taken by EEOC to improve the federal EEO complaint 
process, we reviewed EEOC documents and interviewed commission 
officials. We did not evaluate the effectiveness of actions EEOC 
reported taking. 

We conducted this performance audit from May 2006 through August 2009 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives. 

[End of section] 

Appendix II: EEO Laws Applicable to Federal Employees: 

Title VII of the Civil Rights Act of 1964, as amended, makes it illegal 
for employers, including federal agencies, to discriminate against 
their employees or job applicants on the basis of race, color, 
religion, sex, or national origin.[Footnote 58] The Equal Pay Act of 
1963 protects men and women who perform substantially equal work in the 
same establishment from sex-based wage discrimination.[Footnote 59] The 
Age Discrimination in Employment Act of 1967, as amended, prohibits 
employment discrimination against individuals who are 40 years of age 
or older.[Footnote 60] Sections 501 and 505 of the Rehabilitation Act 
of 1973, as amended, prohibit discrimination against qualified 
individuals with disabilities who work or apply to work in the federal 
government.[Footnote 61] Federal agencies are required to provide 
reasonable accommodation to qualified employees or applicants for 
employment with disabilities, except when such accommodation would 
cause an undue hardship. In addition, a person who files a complaint or 
participates in an investigation of an EEO complaint or who opposes an 
employment practice made illegal under any of the antidiscrimination 
statutes is protected from retaliation. The EEOC is responsible for 
enforcing all of these laws. 

[End of section] 

Appendix III: Comments from the U.S. Equal Employment Opportunity 
Commission: 

U.S. Equal Employment Opportunity Commission: 
Office of the Chair: 
Washington, DC 20507: 

June 24, 2009: 

George H. Stalcup, Director: 
Strategic Issues: 
U.S. Government Accountability Office: 
Washington, D.C. 20548: 

Dear Mr. Stalcup: 

On behalf of the EEOC, I thank you for the opportunity to comment on 
the draft report entitled, "Equal Employment Opportunity: Pilot 
Projects Could Help Test Solutions to Longstanding Concerns with the 
EEO Complaint Process." The report comes at a particularly opportune 
time for EEOC as it acknowledges and supports many of the activities 
that our agency is undertaking to improve the federal sector EEO 
process. 

The stakeholder concerns chronicled in the GAO report have been raised 
before with EEOC and have served as the basis for a number of 
improvements that are being made to the federal sector process, 
including those contained in the pending Notice of Proposed Rulemaking. 
As your report points out, in the NPRM the Commission has created a 
formal procedure by which agencies may apply to use pilot projects that 
will permit agencies, with Commission approval, to test methods for 
improving the federal sector EEO process. We agree with and plan on 
incorporating the report's recommendations that pilot projects have 
sound evaluation plans and that EEOC review and approve such plans. The 
NPRM also contains provisions that will strive to increase 
accountability and efficiency by the agencies and EEOC for the timely 
processing of EEO complaints. These include the requirement that a 180 
day notice be sent to complainants at the point at which an agency 
investigation is to be complete, that agencies begin to provide files 
electronically, as well as imposing time limits on decisions on class 
certification appeals in an effort to expedite the class certification 
process. The EEOC also takes very seriously the questions raised 
concerning the lack of consistency in EEOC decisions at the hearings 
stage and on appeal. The EEOC is conducting a federal sector joint 
training conference in July in which Administrative Judges and 
Appellate Attorneys will work together to develop procedures to improve 
consistency in their decisions, and will share in training sessions on 
the better use of sanctions, summary judgments, and class action 
determinations. 

Most importantly, the EEOC is committed to improving the timelines and 
quality of the EEO complaint process, from the report of investigation 
to the hearings process as well as on appeal. The Commission, led by 
the Acting Vice Chair, has engaged in a thorough review of the agency 
investigative process, and is developing a number of recommendations 
for improvement in this area, including increased training requirements 
for investigators, greater consistency in the production of reports of 
investigation, and development of a formal review process to evaluate 
the quality of investigators. We will also soon implement a pilot 
project which we believe will increase the efficiency of the hearing 
process, and we are finalizing a document on the appropriate 
relationship between agency EEO offices and agency defense counsel. 

We note the fact that the GAO report does not analyze and evaluate the 
validity of the concerns raised by stakeholders or their proposed 
solutions. For example, apparently some stakeholders believed that 
complainants are not held accountable in this process; yet, there are 
specific regulatory provisions that require the dismissal of a 
complaint where the complainant fails to cooperate or is found to have 
abused the complaint process, and complainants have numerous time 
limits they are required to meet and for which their complaint may be 
dismissed for failing to do so. A review of the procedural dismissals 
by agencies shows the high frequency with which these regulatory 
provisions are used to hold complainants accountable. 

The EEOC is committed to improving the timeliness of complaint 
processing, enhancing the quality of the investigative reports as well 
as our hearing and appellate decisions, and ensuring greater 
accountability by all parties in the federal sector complaint process. 
These efforts are ongoing and we will continue to strive to make the 
EEO complaint process a more efficient and fair system for our federal 
employees. 

We thank you for the time you have spent studying the federal sector 
EEO process and look forward to working with you in the future. 

Sincerely, 

Signed by: 

Stuart J. Ishimaru: 
Acting Chairman: 

[End of section] 

Appendix IV: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

George Stalcup, (202) 512-6806 or stalcupg@gao.gov: 

Acknowledgments: 

In addition to the contact named above, Anthony Lofaro, Belva Martin, 
and Kiki Theodoropoulos, Assistant Directors; Gerard Burke; Jeff 
Dawson; Brandon Haller; Karin Fangman; Jeff Niblack; and Greg Wilmoth 
made major contributions to this report. 

[End of section] 

Footnotes: 

[1] 29 C.F.R. 1614. EEOC has supplemented these regulations with 
additional guidance related to the processing of complaints with 
Management Directive 110. 

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

[3] GAO, Federal Employee Redress: A System in Need of Reform, 
[hyperlink, http://www.gao.gov/products/GAO/T-GGD-96-110] (Washington, 
D.C.: Apr. 23, 1996), and Equal Employment Opportunity: Complaint 
Caseloads Rising, With Effects of New Regulations on Future Trends 
Unclear, [hyperlink, http://www.gao.gov/products/GAO/GGD-99-128] 
(Washington, D.C.: Aug. 16, 1999). 

[4] GAO, Equal Employment Opportunity: Discrimination Complaint 
Caseloads and Underlying Causes Require EEOC's Sustained Attention, 
[hyperlink, http://www.gao.gov/products/GAO/T-GGD-00-104] (Washington, 
D.C.: Mar. 29, 2000). 

[5] GAO, The Federal Workforce: Observations on Protections From 
Discrimination and Reprisal for Whistleblowing, [hyperlink, 
http://www.gao.gov/products/GAO-01-715T] (Washington, D.C.: May 9, 
2001). 

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

[7] MSPB is an independent quasi-judicial agency in the executive 
branch that adjudicates employee appeals of personnel actions and 
conducts studies of the federal merit system. See Merit System 
Protection Board, The Federal Government: A Model Employer or a Work In 
Progress? Perspectives from 25 Years of the Merit Principles Survey 
(Washington, D.C., September 2008). 

[8] See § 206(a) of the No FEAR Act. 

[9] These practitioners represent different parts of the complaint 
process, and some of the practitioners may only be familiar with their 
part of the process. 

[10] The 16 agencies represent about 88 percent of EEO complaints filed 
governmentwide in fiscal year 2005. 

[11] After we sent our survey to the 63 selected practitioners, 1 
practitioner informed us that she did not work in one of our 
practitioner categories. As she was the only respondent from her 
agency, we sent the survey to another EEO practitioner at that agency. 
Also, when we did not receive a response from another practitioner at 
another agency, we then sent the survey to an official from her agency. 
Thus, we sent the survey to 65 EEO practitioners. 

[12] ADR generally refers to any procedure agreed to by the parties in 
a dispute that is used to resolve issues in controversy, including, but 
not limited to, conciliation, facilitation, or mediation. As of January 
1, 2000, all federal agencies covered by 29 C.F.R. Part 1614 were 
required to establish or make available an ADR program during the 
informal (precomplaint counseling) and formal complaint stages of the 
EEO process. 

[13] The written notice must inform the employee of the (1) right to 
file a discrimination complaint within 15 days of receipt of the 
notice, (2) appropriate agency official with whom to file a complaint, 
and (3) duty to ensure that the agency is informed immediately if the 
complainant retains counsel or a representative. 

[14] An agency may dismiss an individual's complaint for a number of 
reasons, including failure to contact an EEO counselor in a timely 
manner, failure to file a complaint in a timely manner, or failure to 
state a claim based on covered discrimination. 

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

[16] A complainant may request a hearing at any time after 180 days 
have elapsed from the filing of the complaint, regardless of whether 
the agency has completed its investigation. 

[17] The AJ can extend this time for issuing a decision by making a 
written determination that good cause exists to do so. 

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

[19] 29 C.F.R. § 1614.405. 

[20] For allegations of discrimination under the Age Discrimination in 
Employment Act or the Equal Pay Act, individuals are not required to 
file an administrative complaint as a prerequisite to filing a civil 
action in court. See 29 C.F.R. § 1614.201(a) and § 1614.408. 

[21] We found the EEO processing data sufficiently reliable for our 
purposes; see GAO, Equal Employment Opportunity Commission: Sharing 
Promising Practices and Fully Implementing Strategic Human Capital 
Planning Can Improve Management of Growing Workload, GAO-08-589 
(Washington, D.C.: June 23, 2008), in which we assessed the reliability 
of data EEOC used and found them to be sufficiently reliable for the 
purposes of the report. 

[22] We also had "Other" and "Not applicable" categories. Other 
included responses that did not fit into the eight factors, and not 
applicable responses fell mainly into two broad areas that were outside 
of the scope of our review: class action complaints and "mixed cases," 
which allege discrimination and another prohibited personnel practice. 

[23] Coalition members included stakeholders representing the American 
Federation of Government Employees, the Council of Federal EEO and 
Civil Rights Executives, the National Association for the Advancement 
of Colored People, and several lawyers' associations and law firms. On 
March 25, 2003, the coalition submitted its proposal to EEOC. 

[24] Among the participants were a supervisory AJ, union 
representatives, the Senior Executive Association, the Council of 
Federal EEO and Civil Rights Executives, and firms that contract with 
agencies to perform EEO investigations. 

[25] Under current rules, a complainant has the right to request a 
hearing or file a lawsuit when an investigation has not been completed 
within 180 days of the complaint being filed, but there is no 
requirement that agencies notify the complainant when the time has 
elapsed. 

[26] Under 29 C.F.R. § 1614.107(a)(7), an agency may dismiss a 
complaint (any time prior to a request for a hearing) where the 
complainant has failed to cooperate. Instead of dismissing a complaint, 
an agency may proceed toward a decision if sufficient information is 
available. 

[27] "Fast track" cases contain simple issues for which complete 
investigations have been conducted but for which hearings must be held 
to resolve credibility problems; for "fast track" cases, the process 
will be expedited. "Regular track" cases are of average complexity and 
will be processed in a manner similar to current processing. A "complex 
track" case involves complex issues or other circumstances that require 
more time to reach a full and fair adjudication. 

[28] Equal Employment Opportunity Commission, Federal Sector 
Investigations-Time and Cost (Washington, D.C., Aug. 25, 2004). 

[29] EEOC requires agencies with 100 or more employees to submit a 
report that captures information from EEO Form 462, which summarizes 
the details of each EEO complaint processed by an agency from October 1 
of one year to September 30 of the next year. The report also contains 
summary information about agency staff resources, staff training, EEO 
director reporting lines, and contact information. 

[30] Stakeholders who spoke at the meeting included union 
representatives and representatives of companies that partnered with 
agencies to conduct EEO investigations. 

[31] U.S. Postal Service, Office of Inspector General, Management 
Advisory: The Postal Service's Equal Employment Opportunity Contracting 
Function, Report Number HM-MA-08-001 (Washington, D.C., Feb. 21, 2008). 

[32] To help improve the knowledge and skills of agency EEO staff, EEOC 
offers a variety of training courses through its Training Institute. 
Courses include investigator and counselor training, drafting letters 
of acceptance and dismissal, and drafting FADs. 

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

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

[35] Section 717 of Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 2000e-16, which addresses EEOC's role in the 
federal sector, does not refer back to the provision (42 U.S.C. § 2000- 
9) granting subpoena authority for private sector enforcement under 
Title VII. 

[36] 29 C.F.R. § 1614.107 (a). 

[37] See, for example, Presley v. United States Postal Service, EEOC 
Request No. 0120090625 (Mar. 17, 2009), and Cobb v. Department of the 
Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). 

[38] Of 15,805 complaints closed in fiscal year 2007, merit decisions 
were issued in 7,673 cases. In other cases that were closed, the 
complaint was dismissed or withdrawn or a settlement was reached by the 
complainant and agency. Of the 7,673 cases with merit, discrimination 
was found in 216 (2.8 percent). 

[39] Agencies are to report annually to the Speaker of the House of 
Representatives, the President Pro Tempore of the Senate, the Senate 
Committee on Governmental Affairs, the House Committee on Government 
Reform, each committee of Congress with jurisdiction relating to the 
agency, EEOC, and the Attorney General. 

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

[41] 29 C.F.R. § 1614.109(f)(3). 

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

[43] 29 C.F.R. §1614.108(c)(3). 

[44] See GAO, Diversity Management: Expert-Identified Leading Practices 
and Agency Examples, [hyperlink, http://www.gao.gov/products/GAO-05-90] 
(Washington, D.C.: Jan. 14, 2005). 

[45] Unfair labor practice allegations are investigated by the Federal 
Labor Relations Authority's (FLRA) Office of General Counsel (OGC), 
which also settles and prosecutes unfair labor practice charges. At the 
conclusion of the investigation, FLRA's OGC makes a decision as to 
whether to dismiss the charge or file a complaint (on the individual's 
behalf) with an FLRA administrative law judge. 

[46] EEOC announced its Notice of Proposed Rulemaking on Federal Sector 
Regulations at a June 2, 2008, commission meeting but has not yet 
published it. See notice of meeting at 73 Fed. Reg. 30392 (May 27, 
2008). In addition to the changes in regulations it is proposing, EEOC 
has tasked a work group with developing recommendations on ways to 
improve the hearings process. 

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

[48] With this provision, the commission stated that it intends to 
provide a mechanism for reviewing and seeking compliance from agencies. 

[49] As stated earlier, currently a complainant has the right to 
request a hearing or file a lawsuit when an investigation has not been 
completed within 180 days of the complaint being filed, but there is no 
requirement that the agency notifies the complainant when the time has 
elapsed. 

[50] Other than an early consultation with DOD, EEOC was not involved 
in the design or implementation of the DOD pilot programs. 

[51] GAO, Equal Employment Opportunity: DOD's EEO Pilot Program Under 
Way, but Improvements Needed to DOD's Evaluation Plan, [hyperlink, 
http://www.gao.gov/products/GAO-06-538] (Washington, D.C.: May 5, 
2006), and Limitations in DOD's Evaluation Plan for EEO Complaint Pilot 
Program Hinder Determination of Pilot Results, GAO-08-387R (Washington, 
D.C.: Feb. 22, 2008). 

[52] This plan should include forms for collecting baseline data 
(before the pilot program begins) and program data from the pilot as 
well as detailed time frames, roles and responsibilities, and report 
planning in the evaluation plan. 

[53] We used fiscal year 2005 data because those were the most recently 
available data from EEOC at the time we began our work in May 2006. 

[54] By using a Web-based process instead of a panel discussion, we 
were able to overcome the potential biases that can occur as experts 
share their opinions in group settings where factors such as especially 
vocal individuals and pressures to conform to the group may skew 
results. By creating a Web-based virtual panel, we were able to include 
more individuals from these groups than would have been possible with a 
live panel. 

[55] We did not evaluate the effectiveness of any of the initiatives 
practitioners identified. 

[56] "Other" included responses that did not fit into the eight 
factors. "Not applicable" responses fell mainly into two broad areas 
that were outside of the scope of our review: class action complaints 
and "mixed cases," which allege discrimination related to actions that 
can be appealed to the Merit Systems Protection Board. 

[57] We interviewed representatives from organizations with government 
oversight responsibility, including the Merit Systems Protection Board, 
the Office of Personnel Management, and the National Academy of Public 
Administration; EEO practitioners, including officials from EEOC; 
attorneys from Justice who represent the government in EEO litigation 
and U.S. attorneys presiding over such litigation; attorneys from the 
American Bar Association; representatives from both the American 
Federation of Government Employees and the National Treasury Employees 
Union; officials from the Federal Managers Association and the Senior 
Executives Association that represent current and former members of the 
Senior Executive Service and equivalent federal pay systems; Federal 
Employment Lawyers Group; and others from organizations involved with 
the complaint process through their representation of employees, 
including Blacks in Government, Federally Employed Women, the National 
Council on Disability, the National Association of Hispanic Federal 
Executives, the Association for Persons with Disabilities in 
Agriculture, the Asian American Government Executives Network, the 
Council on Federal EEO and Civil Rights Executives, and the Deaf and 
Hard of Hearing in Government. 

[58] 42 U.S.C. §§ 2000e et seq. 

[59] 29 U.S.C. § 206(d). 

[60] 29 U.S.C. §§ 621 et seq. 

[61] 29 U.S.C. §§ 791 and 794a. 

[End of section] 

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