Federal Sector Investigations Time and Cost

The U.S. Equal Employment Opportunity Commission

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Table of Contents

Background

The EEO Complaint Process

Results

Problems in Conducting Timely EEO Investigations

Investigation Costs Inconsistently Reported

ADR as an Alternative

Appendix

Background

In accordance with our responsibility to evaluate federal sector agencies' equal employment opportunity (EEO) programs, operations, and activities, the Equal Employment Opportunity Commission's (EEOC) Office of Federal Operations conducted an analysis of the time it takes agencies to conduct investigations of federal sector EEO complaints and the cost to the government for conducting those investigations. Although this report is not all inclusive of the factors which cause overlong and costly delays, it provides the agencies with an opportunity to begin assessing their own internal operations against the goal of having a model EEO program.

Federal government agencies are required to comply with established time frames for investigating allegations of discrimination. Longstanding failures to adhere to these standards have resulted in EEOC's evaluation of agencies complaint processing operations and activities. This report compiles information from previously issued evaluative reports that address reasons for delays in investigating complaints. As EEOC continues to assess reasons for these overlong delays and other areas of non-compliance, we will share the information as appropriate to assist agencies in improving their EEO programs.

On October 1, 2003, EEOC issued Management Directive 715, which provides policy guidance and standards to agencies for establishing and maintaining model EEO programs. The guidance outlines six essential elements for ensuring model EEO programs in the federal sector. The six elements require (1) demonstrated commitment from agency leadership, (2) integration of EEO into the agency's strategic mission, (3) management and program accountability, (4) proactive prevention of unlawful discrimination, (5) efficiency, and (6) responsiveness and legal compliance.

Delays in federal sector EEO complaint processing have been a longstanding concern of EEOC, other federal agencies, advocacy groups, and members of Congress. The investigation into allegations of discrimination is a key component of the formal EEO complaint process. However, lengthy delays in this process may impede the primary goal of gathering sufficient evidence to permit a determination as to whether discrimination occurred.

Over the past eleven years (Fiscal Year (FY) 1993 - 2003) it has taken the federal government from an average low of 171 days to an average high of 343 days to investigate EEO complaints. One agency reported in FY 1993 that it took an average low of 5 days to conduct its investigations, and another agency reported in FY 1999 that it took an average high of 1,762 days to conduct its investigations. Generally, agencies must complete investigations and issue the report of investigation within 180 days from the date the complaint was filed. During this eleven year period, agencies reported that it has cost the federal government $387.5 million to investigate the 160,278 complaints filed for an average cost of $2,418 per investigation.

The EEO Complaint Process

Agencies process federal employees' EEO complaints under regulations promulgated by EEOC at 29 C.F.R. Part 1614. These regulations establish time standards for processing complaints. Employees who are unable to resolve their concerns through counseling can file a complaint with their agency. The agency will either dismiss⁽¹⁾or accept the complaint. If the complaint is accepted, the agency must conduct an investigation and issue the results of the investigation within 180 days from the date the complaint is filed.⁽²⁾

After the employee receives the investigative report, he/she may (1) request a hearing before an EEOC administrative judge who issues a decision which the employee or the agency may appeal to EEOC, or (2) forgo a hearing and request a final agency decision. An employee who is dissatisfied with a final agency decision or the agency's decision to dismiss the complaint may appeal to EEOC. The complainant or agency may also request EEOC to reconsider its decision from the appeal. The complainant also has the right to file a civil action in a federal district court.

An integral part of EEOC's strategic goals and objectives is to provide information that will help agencies become model workplaces by identifying and helping to solve EEO program deficiencies. The information provided herein describes activities during the investigative stage of the EEO process which hinder the prompt and effective processing of formal EEO complaints, and offers suggestions for improvement.

Results

To assist agencies in ensuring their EEO programs and practices comply with statutory and regulatory requirements, EEOC's Office of Federal Operations staff gathered and analyzed information from previously issued EEO program evaluation reports, and annual reports on the federal workforce. The reports contained findings which addressed, among other things, reasons for delays in investigating discrimination complaints as well as the time and cost associated with conducting federal sector investigations.

To determine the time and cost associated with federal sector investigations, we analyzed data from EEOC's Annual Report on the Federal Work Force for FY 1993 through FY 2003. Data on the administrative processing of federal sector complaints is provided to EEOC by federal agencies subject to 29 C.F.R. 1614. In addition to the analysis of this data, we reviewed recent reports issued by EEOC's Office of Federal Operations which addressed, among other things, the issue of overlong delays in processing federal sector investigations at certain agencies. We also reviewed reports issued by the U.S. General Accounting Office, reports issued by agencies' Office of Inspector General, as well as other agency specific reports and studies involving EEO program operations and activities.

Problems in Conducting Timely EEO Investigations

Generally, the steps involved in investigating a federal sector EEO complaint are: (1) acknowledge receipt of the complaint, (2) accept or dismiss the complaint, (3) assign the complaint for investigation to in-house investigators or to a contractor for investigation, (4) conduct the investigation, (5) prepare the report of investigation, and (6) issue the report of investigation to the complainant.⁽³⁾

EEOC's Chair, Cari M. Dominguez, highlighted in her recent letter transmitting, to each agency head, EEOC's Annual Report on the Federal Workforce for FY 2003, three areas for agencies to consider in ensuring the development of model EEO programs, one of which was timeliness of EEO complaint processing. Certain agencies were urged to take appropriate steps to promote case management practices which would improve the time it takes to investigate complaints of discrimination. Over the past eleven years agencies have investigated 160,278 complaints. Of the 160,278 investigations, it has taken from an average low of 171 days in FY1993 to an average high of 343 days in FY 1997 to process a complaint from filing to issuance of the investigative report to the complainant. In FY 2003, agencies reported that it took an average 267 days to conduct an investigation. See Appendix.

Figure 1 below shows the total investigations conducted government-wide, and figure 2 shows the average processing time to conduct those investigations during FY 1993 through FY 2003.

EEOC's standard time frame at 29 C.F.R. 1614.108 (e) and (f) requires agencies to complete their investigations within 180 days of the date of filing of an individual complaint and provide the complainant with a copy of the investigative file. An analysis of agencies' investigative time frames revealed that not only did certain agencies not meet the regulatory time frame, they greatly exceeded the government-wide average. Accordingly, EEOC visited some of those agencies, identified reasons for delays in investigating discrimination complaints, and issued the results in reports to the agencies. We have outlined below some of the reasons identified in our reports that contributed to those delays.

• One report showed that it took the agency from 46 - 180 days to issue a notice of acceptance. According to agency officials this was due to under-staffing, new employees under the learning curve, and management problems in the agency's complaint processing division. Another report showed that the process for accepting a complaint for investigation or dismissing it was close to an average of one and a half years. Officials and staff of the agency stated that the delay was due to a lack of staff to review the complaints and decide whether to accept or dismiss them. Delays in issuing notices of acceptance may severely reduce the time for the actual investigation or cause the investigation to exceed the regulatory time frame.

• Two of the four reports showed that delays by the EEO offices in submitting requisitions for investigative services to the agency's procurement offices and procurement processing of purchase orders for investigative services caused overlong delays. One of those reports show that the process took an average 68 days: an average of 14 days for the EEO office to solicit and receive bids; an average of 15 days for the EEO office to submit a memorandum to procurement; an average of 20 days for procurement to award a contract; and an average of 19 days for the EEO office to send the complaint and authorization letter to the contractor. The process severely reduced the time for actual investigations and caused investigations to exceed the regulatory time frame.

• One agency's procedures required the review and approval of the contractor's investigative plan before the actual investigation begins. This process took an average 51 days (a range of 7 days to 166 days) from the date the complaint was assigned to the investigative firm. Despite the time spent with repeat reviews of these plans, some investigative reports were still unacceptable to the agency, and agency staff were required to supplement the work performed by the contractor or required the Contractor to conduct additional investigative work. Excessive time spent reviewing investigative plans, and supplementing contractors' work may result in additional cost and cause the investigation to exceed the regulatory time frame. Conversely, we found a better practice where an agency required a 24-hour turnaround time for approval of investigative plans. The agency starts with the premise that the investigator needs as much time as possible. The agency recognizes that the investigative plan is a framework or guide, and that as the investigative process evolves, issues may develop which cause the investigative plan to change.

• Two reports showed delays in obtaining affidavits, due to difficulty in locating complainants or complainant unavailability as well as witness and complainant failure to return affidavits in a timely manner.⁽⁴⁾There were delays at one agency in scheduling management official interviews due to investigators or to competing priorities of management officials. Investigators also failed to timely submit affidavits to special counsels for signature by management officials and there were additional delays if changes needed to be made to affidavits before special counsel would forward them again for signature by management officials. Further, delays were caused by counsels in returning affidavits/interrogatories signed by management officials.

• Two reports show that internal tracking systems did not contain the necessary information to ensure timely, accurate, and complete processing of formal complaints. For example, the agencies' tracking systems could not identify where pending complaints were in the EEO complaint process and in one case who was responsible for the complaint on a specific date. The lack of an adequate system to assist EEO office staff in monitoring the investigative process contributes to delays.

Not only do unnecessary and time consuming processes hinder the prompt investigation of federal sector complaints, they may also result in additional cost to the government in salaries and other costs associated with the investigation. For example, at one agency we found that the time spent by agency staff in repeated reviews of the same contractor investigative plan, in some cases, still resulted in agency staff having to supplement the investigation after the contractor's final investigative report was provided to the agency. Therefore, additional costs are incurred by these repeated reviews of investigative plans and in supplementing the contractors final work product. Not only may delays in investigating complaints impede the primary goal of gathering sufficient evidence to permit a determination as to whether discrimination occurred, it may also affect the livelihood and well being of individuals who believe they have been discriminated against.

Each agency bears the responsibility to ensure full compliance with EEOC regulations, orders and other written instructions which includes requirements for investigating complaints and establishing model EEO offices. We recommend that agencies annually conduct self-assessments of EEO program operations and activities to identify areas of inefficient, ineffective and costly practices.⁽⁵⁾We have also outlined below some actions to help reduce the time it takes to conduct investigations and further any efforts toward ensuring a model EEO program.

Investigation Costs Inconsistently Reported

Based on data provided by federal agencies to EEOC, during FY 1993 through FY 2003, it cost an average $2,418 to conduct an investigation. The methods and variables used by agencies to collect and report costs data to EEOC differ among agencies. For example, Department of Defense agencies whose investigations are conducted by the Office of Complaints Investigation report a flat rate of $250 per investigation. This may not reflect the true cost of a federal sector complaint investigation. Other agencies report the salary of some or all staff involved in conducting the investigation. Still other agencies may report overhead costs such as office supplies, equipment, travel, etc., in addition to the salary of some or all staff. During FY 2003, one agency reported that it took 153 days to conduct one investigation at a cost of $1,000, and another agency reported it took 180 days to conduct one investigation at a cost of $15,000. Both of these investigations were conducted by in-house agency staff/investigators.

Despite additional instructions provided by EEOC for determining the cost of investigations, significant cost disparities continue to exist in the data reported by agencies. Accordingly, the magnitude of investigative costs to the government cannot be accurately assessed unless agencies report the costs in a uniform manner. Table 3 shows the cost to the government as reported by federal sector agencies for the 160,278 investigations conducted from FY 1993 through FY 2003.

Federal government executives as well as the President and Congress make policy decisions on program priorities and allocate resources among programs. These officials need cost information to compare alternative courses of action and to make program authorization decisions by assessing costs and benefits. They also need cost information to evaluate program performance. Managerial cost accounting information provides both internal and external agency users with relevant and reliable information relating cost outputs and activities, thus, increasing the transparency of EEO program operations. Based on this information, program managers can respond to inquiries about the costs of the activities they manage. Cost information also assists program managers in improving operational economy and efficiency.⁽⁶⁾

Showing the full cost of federal sector complaint investigations in an accurate manner should be an element of agencies' efforts to "Get to Green" on the President's Management Agenda Scorecard.⁽⁷⁾ In June 2002, EEOC issued more detailed instructions to assist agencies in capturing the cost of federal sector investigations in a uniform and accurate manner. If agencies fully abide by EEOC's instructions, EEOC would have the data which will allow for more accurately determining the cost associated with conducting federal sector investigations.

ADR as an Alternative

To avoid timely and costly investigations, agencies should try and resolve disputes at early stages of the EEO process. In addition to traditional counseling activities, agencies should promote and expand alternative dispute resolution (ADR) as a means of avoiding more formal dispute resolution processes. Used properly, ADR can provide fast and cost effective results while at the same time improving workplace communication and morale. In 1999, EEOC amended its regulations to require federal agencies to establish ADR programs within the EEO process. EEOC's Office of Federal Operations is currently working on a study of the effectiveness of ADR in the federal sector which it plans to issue in the near future.

If you have any questions or concerns regarding this report, please contact Catherine M. McNamara, Acting Director, Federal Sector Programs, at 202-663-4528, catherine.mcnamara@eeoc.gov, or Joyce A. Keyes, Program Analyst, 202-663-4620, joyce.keyes@eeoc.gov. As always, we look forward to working with you in our continued efforts to assist agencies in meeting their EEO goals and objectives.

Appendix

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Footnotes

1. There are several reasons an agency may dismiss a complaint including the complainant's failure to state a claim, timely contact a counselor, provide information to the agency, accept a full settlement offer; or the inability to locate the complainant. See 29 C.F.R. §1614.107.

2. The 180 day period may be extended 90 days if both parties agree. The regulations also extend the 180 day time limit for submitting the investigative report to the complainant for consolidated and amended complaints to the earlier of 180 days from the date of the most recent consolidated or amended complaint, or 360 days from the date of the earliest pending complaint.

3. Contractors are generally only involved in steps 4 and 5 of the investigative process.

4. Agency reports and complaint files did not contain information from which we could glean reasons for delays or quantify the extent of the delays attributable to complainants, investigators, and management officials. Delays from beginning to the end of the investigative process were determined through interviews with investigators, management officials, documentation supplied by interviewees or contained in some complaint files.

5. See EEOC Instructions to Federal Agencies for Equal Employment Opportunity Management Directive 715 (EEO MD-715).

6. Statutory authority for achieving improvements in federal agency accountability and program management is provided through laws such as the Chief Financial Officers Act of 1990, Government Performance and Results Act of 1993, the Government Reform Act of 1994, the Clinger-Cohen Act of 1996, formerly known as the Information Technology Management Reform Act, and the Federal Managers' Financial Integrity Act of 1982.

7. Achieving full compliance with the Budget and Performance Integration initiative of the President's Management Agenda requires that, "[F]ull budgetary cost is charged to mission accounts and activities."

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This page was last modified on August 25, 2004.