Agencies process federal employees' EEO complaints under regulations promulgated by EEOC at 29 C.F.R. Part 1614. Employees who are unable to resolve their concerns through counseling can file a complaint with their agency.(7) The agency will either dismiss(8) or accept the complaint. If the complaint is accepted, the agency must conduct an investigation, and in most instances, issue the investigative report within 180 days from the date the complaint is filed.(9)
After the employee receives the investigative report, s/he may (1) request a hearing before an EEOC Administrative Judge who issues a decision which the employee or the agency may appeal to EEOC's Office of Federal Operations, 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 has the right to file a civil action in a federal court.
As the EEO complaint process has become increasingly more costly, adversarial, and lengthy, EEOC has encouraged agencies to promote and expand the use of 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 improve workplace communication and morale.(10)
Instances of counseling decreased by 5.8% and formal complaints declined by 5.9% from FY 2003 to FY 2004. Of the 42,412 instances of pre-complaint counseling, only 17,878 individuals filed 19,024 formal complaints in FY 2004.(11) The number of formal complaints filed represents 44.9% of all pre-complaint counseling activities in FY 2004. As Figure 2 shows, over the past five fiscal years, the number of pre-complaint counseling activities has fluctuated between a high of 56,275 in FY 2002 and a low of 42,412 in FY 2004, while the number of complaints filed by individuals has steadily decreased. During the same five-year period, the number of formal complaints filed continued to represent less than 50% of all pre-complaint counseling activities. See Figure 2. Significantly, we note that while the United States Postal Service constituted 28.3% of the workforce, it accounted for over 40% of all EEO counselings, as well as all complaints filed, investigated and closed in FY 2004.
Figure 2 - Counseling to Formal Complaints Filed FY 2000 - FY 2004
* Instances of counselings by ADR Intake Officers were excluded due to concerns about the accuracy of the data.
National Endowment for the Arts Had Highest Percentage of Individuals Who Completed Counseling Per Work Force
Table 5 shows that in FY 2004, the National Endowment for the Arts reported the highest percentage of individuals who completed counseling per work force (21.2%), while the percentage for the government-wide average was 1.4%. Agencies that had fewer than 25 completed counselings were not included in the ranking. Table 1 in Appendix IV lists this information for all agencies is located at www.eeoc.gov.
|Agencies||Total Work Force||Percentage of Individuals Who Completed Counseling|
|National Endowment for the Arts||165||21.2%|
|Commodity Futures Trading Commission||505||19.8%|
|Broadcasting Board of Governors||1,829||5.9%|
|Defense - Office of Inspector General||1,289||4.0%|
|Office of Personnel Management||3,698||2.9%|
Office of Personnel Management Had Highest Percentage of Individuals Who Filed Complaints Per Work Force
As shown in Table 6 below, the Office of Personnel Management reported the highest percentage of individuals who filed complaints (complainants) per work force (1.8%), while the percentage for the government-wide average was 0.6% in FY 2004. Agencies that had fewer than 25 complaints filed were not included in the ranking. Table 1 in Appendix IV contains this information for all agencies is located at www.eeoc.gov.
|Agencies||Total Work Force||Percentage of Complainants|
|Office of Personnel Management||3,698||1.8%|
|Government Printing Office||2,401||1.4%|
|Broadcasting Board of Governors||1,829||1.3%|
|Equal Employment Opportunity Commission||2,479||1.2%|
|Department of Housing and Urban Development||10,135||1.2%|
In FY 2004, ADR was used in 43.3% of all instances of EEO counseling, which represents an increase of 1 percentage point from the ADR participation rate (42.4 percent) in FY 2003. See Figure 3. This increase may be due to an ADR offer rate that climbed from 73.0 percent in FY 2003 to 79.5% in FY 2004.
Figure 3 - ADR Usage in the Pre-Complaint Process FY 2000 - FY 2004(12)
The U.S. Postal Service Had Highest ADR Participation Rate in FY 2004
The U.S. Postal Service reported the highest ADR participation rate in the pre-complaint process (72.3%), whereas the government-wide average was 43.3% in FY 2004. See Table 7. The ADR participation rate is obtained by dividing the number of cases processed in ADR by the total number of instances of counseling. Agencies that had fewer than 25 cases processed in ADR were not included in the ranking. See Table 7 in Appendix IV for information on all agencies which is located at www.eeoc.gov.
|Agencies||Total Work Force||Counselings||Participation in ADR||Participation Rate|
|U.S. Postal Service||807,596||19,101||13,815||72.3%|
|Defense Dependent Education Activity||17,691||112||52||46.4%|
|Department of the Army||226,632||2,016||722||35.8%|
|Department of the Air Force||141,147||1,652||519||31.4%|
|Department of Homeland Security||160,749||2,447||768||31.4%|
On average, agencies failed to meet timeliness requirements for EEO counseling in 23.7% of all completed counselings. Agencies are required to complete counseling in 30 days except when there is a 60-day extension due to an ADR election or the complainant agrees in writing to an extension.
Broadcasting Board of Governors Had Highest Number of Timely Completed Counselings
Of the 31 agencies that timely completed 100% of the counselings for FY 2004, the Broadcasting Board of Governors reported the highest number of counselings. See Table 8. The government-wide average for timely completed counselings was 76.3% in FY 2004; although, without the Postal Service statistics, the timely average was 83.0%. Agencies that had fewer than 25 counselings were not included in the ranking. Table 3 in Appendix IV contains this information for all agencies and is located at www.eeoc.gov.
|Agencies||Total Work Force||Counselings*||Counselings Timely Completed|
|Broadcasting Board of Governors||1,829||149||100.0%|
|Defense Dependent Education Activity||17,691||112||100.0%|
|National Endowment for the Arts||165||65||100.0%|
|Defense National Geospatial-Intelligence Agency||0**||28||100.0%|
*Counselings exclude remands **Total Work Force unavailable for national security reasons.
See the Commission's "Attaining a Model Agency Program: Efficiency" report located on the web at www.eeoc.gov/federal/efficiency.html
One of the purposes for pre-complaint resolution efforts is to resolve existing disputes early on to decrease the chances of future disputes between the parties. Although the EEO resolution rate (the sum of the total settlements and total withdrawals divided by the total completed counselings, see Table 4 in Appendix IV) decreased by 2.7% from FY 2000 to FY 2004, fewer individuals were counseled multiple times. See Figure 2. In fact, the number of individuals who sought counseling multiple times decreased from 10.6% in FY 2003 to 6.0% of all counselings in FY 2004. Consequently, resolutions at the pre-complaint stage have resulted in fewer formal complaints.
National Endowment for the Arts and Defense Office of Inspector General Report Highest Pre-Complaint Resolution Rate (No complaint filed)
In FY 2004, the National Endowment for the Arts and Defense Office of Inspector General reported the highest pre-complaint resolution rate (100.0%), whereas the government-wide average was 50.7%. See Table 9. Agencies that had fewer than 25 counselings were not included in the ranking. Table 4 in Appendix IV contains this information for all agencies and is located at www.eeoc.gov.
|Agencies||Total Work Force||CompletedCounselings||Resolution Rate|
|National Endowment for the Arts||165||65||100.0%|
|Defense Office of Inspector General||1,289||51||100.0%|
|Commodity Futures Trading Commission||505||100||99.0%|
|Broadcasting Board of Governors||1,829||149||80.5%|
|Defense Dependent Education Activity||17,691||112||76.8%|
The Defense Dependent Education Activity Had Highest ADR Resolution Rate in FY 2004
The Defense Dependent Education Activity reported the highest ADR resolution rate in the pre-complaint process (100.0%), whereas the government-wide average was 48.7% in FY 2004. See Table 10. When the U.S. Postal Service resolution rate (45.6%) is excluded from the government-wide average, the ADR resolution rate increased to 57.4% in FY 2004. The ADR resolution rate is obtained by dividing the number of ADR settlements and withdrawals from the EEO process by the number of ADR closures. Agencies that had fewer than 25 ADR closures were not included in the ranking. Table 5 in Appendix IV contains this information for all agencies and is located at www.eeoc.gov.
|Agency||Workforce||ADR Closures||ADR Resolutions||ADR Resolution Rate|
|Defense Dependent Education Activity||17,691||52||52||100.0%|
|Defense Logistics Agency||21,435||77||65||84.4%|
|Department of Veterans Affairs||235,345||448||355||79.2%|
|Defense Commissary Agency||15,724||60||42||70.0%|
|General Services Administration||12,810||25||17||68.0%|
The monetary benefits awarded during the pre-complaint phase, shown in Table 11, dropped significantly since FY 2000. The data showed a slight increase in the average amount of monetary benefits from FY 2003 to FY 2004.
|Pre-Complaint Monetary Benefits by Fiscal Year|
|FY||Total Instances of Counselings||Total Resolutions||Total Resolutions with Monetary Benefits||Percentage of Resolutions to Counselings||Settlement Monetary Benefits||Average Award Per Resolution with Monetary Benefits|
Of the 19,024 complaints filed in FY 2004, the top basis alleged was reprisal (7,782) and the top issue was non-sexual harassment (5,175). As shown in Tables 12 and 13, this trend remained unchanged for the past five years. Notably, the complaints alleging age discrimination, for the second time in five years, exceeded race (Black) and sex (Female), the other most prevalent bases alleged. Conversely, the top three issues alleged in complaints filed remained consistent over the same five-year period.
|Basis||FY 2000||FY 2001||FY 2002||FY 2003||FY 2004|
|Race - Black||6,330||6,152||5,647||5,279||5,021|
|Sex - Female||5,907||5,755||5,242||5,150||4,613|
|Issue||FY 2000||FY 2001||FY 2002||FY 2003||FY 2004|
|Harassment - Non-Sexual||5,430||6,082||5,431||5,689||5,175|
In FY 2004, agencies were timely in completing investigations only 42.7% of the time, (including where a written agreement extended the investigation was present or when complaints were consolidated or amended). The percentage of timely completed investigations increased to 51.6% government-wide when the U.S. Postal Service is not included. Agencies averaged 280 days to complete an investigation in FY 2004, a slight increase from the 267 day average in FY 2002 and FY 2003. See Figure 4 below.
Federal agencies fail to timely investigate allegations of discrimination for many reasons. EEOC's review of the investigatory practices of a sampling of agencies revealed, among other reasons, that poorly staffed EEO offices, unnecessary and time consuming procedures, delays in obtaining affidavits, and inadequate tracking and monitoring systems contributed to untimely investigations. For more information, see Federal Sector Investigations - Time and Cost, issued June 2004 and Attaining a Model Agency Program: Efficiency at www.eeoc.gov/federal.
Tennessee Valley Authority: 100% Timely Completed Investigations
As shown in Table 14, the Tennessee Valley Authority was the only agency that timely completed investigations 100% of the time. Government-wide agencies only timely completed investigations 42.7% in FY 2004. Agencies that had fewer than 25 investigations filed were not included in the ranking. Table 9 in Appendix IV contains this information for all agencies and is located at www.eeoc.gov.
|Agencies||Total Work Force||Number Completed Investigations||Number Timely Completed||% Timely|
|Tennessee Valley Authority||12,742||34||34||100.0|
|General Services Administration||12,810||88||84||95.5|
|Department of Treasury||128,317||405||366||90.4|
|Equal Employment Opportunity Commission||2,479||35||31||88.6|
|Department of Energy||13,819||59||51||86.4|
Final Agency Actions
EEOC regulations require an agency to take a final action on each formal complaint filed. Table 15 below provides a breakdown with processing time for all final agency actions. Agencies may issue a decision dismissing a complaint on procedural grounds such as untimely EEO counselor contact or failure to state a claim. Government-wide, agencies took 150 days to issue a decision dismissing a complaint on procedural grounds. In general, acceptance letters/dismissal decisions should be issued well in advance of the 180-day time limit to complete an investigation. A suggested rule-of-thumb is to issue these actions within 60 days of the filing of the formal complaint.
An agency may also issue a decision after an investigation, either finding discrimination or finding no discrimination. In FY 2004, agencies were timely in issuing final agency merit decisions 43.6% of the time. Commission regulations require agencies to issue final decisions within 60 days of complainant's request for such a decision or within 90 days after completion of an investigation if complainant has not requested either a final decision or an EEOC hearing.
Finally, when an EEOC Administrative Judge has issued a decision, the agency may issue a final order either implementing the Administrative Judge's decision or not implementing the Administrative Judge's decision and simultaneously appealing to the EEOC. In FY 2004, agencies issued 4,829 final orders implementing and 114 orders not implementing the Administrative Judge's decision. Commission regulations require agencies to issue an order within 40 days of receiving the Administrative Judge's decision.
|Complaint Closures||Merit Final Agency Actions With AJ Decisions||Merit Final Agency Decisions Without AJ Decisions||Procedural Dismissals||Settlements||Withdrawals|
See the Commission's "Attaining a Model Agency Program: Efficiency" report located on the web at www.eeoc.gov/federal/efficiency.html
Defense Commissary Agency Issued the Highest Percentage of Timely Merit Decisions Without an Administrative Judge Decision
In FY 2004, the Defense Commissary Agency reported the highest percentage (100%) of timely issued merit decisions without an Administrative Judge decision (among those agencies which issued 25 or more). See Table 16. Government-wide, only 43.6% of agency merit decisions were timely issued. We note that nine agencies issued 100.0% of their merit decisions in a timely fashion, but 8 of them issued less than 25 total merit decisions. Agencies that had fewer than 25 merit decisions without a hearing were not included in the ranking. See Table 11 in Appendix IV for this information on all agencies which is located at www.eeoc.gov.
|Merit Decisions without an AJ Decision|
|Agencies||Total Work Force||#||Timely||%|
|Defense Commissary Agency||15,724||34||34||100.0%|
|Department of the Navy||194,763||237||222||93.7%|
|Department of the Treasury||128,317||277||188||67.9%|
|Department of Veterans Affairs||235,345||667||357||53.5%|
|U.S. Postal Service||807,596||2,915||1,488||51.0%|
Since FY 2000, findings of discrimination have increased in the federal government. Table 17 below shows that both the total number of merit decisions and the number of findings of discrimination have increased over the past three years.
|Total Complaint Closures||Findings of Discrimination||Settlements||Monetary Benefits|
|FY||#||Total Merit Closures||#||% of Merits Closures||#||% of Total Closures||Total Complaint Closures with Benefits #||Total (in millions)||Per Capita|
Average monetary benefits awarded in resolution of formal EEO complaints decreased by 9.5% between FY 2003 and FY 2004. Table 17 above shows the total monetary benefits awarded during the formal complaint process for the past five fiscal years, while Figure 5 indicates what portion of these benefits were for compensatory damages and attorneys' fees.
In order to achieve a model EEO program, agencies must meet the six essential elements discussed in detail in EEO Management Directive 715. The fifth element, "Efficiency," encompasses the timely filing of required reports with the EEOC. Appendix III contains the federal agencies' compliance with the requirements to timely submit their Form 462 and MD-715 reports.
EEOC Form 462 reports provide information on discrimination complaint processing data and alternative dispute resolution efforts. Form 462 reports are due on October 31st of each year.
Equal Employment Opportunity Management Directive 715 (MD-715) applies to all executive agencies and military departments (except uniformed members) as defined in Sections 102 and 105 of Title 5. U.S.C. (including those with employees and applicants for employment who are paid from non-appropriated funds), the United States Postal Service, the Postal Rate Commission, the Tennessee Valley Authority, the Smithsonian Institution, and those units of the judicial branch of the federal government having positions in the competitive service. These agencies and their Second Level Reporting Components (as listed in Appendix III) were required to file EEOC FORM 715-01.
The MD-715 reports provide information on an agency's progress in achieving the model EEO program elements, elimination of barriers, and ability to conduct a wide array of examinations of the agency's Title VII and Section 501 work force profiles. EEOC Form 715-01 are timely filed if postmarked or received before January 31st of each year.
7. Concerns involving both allegations of discrimination and agency actions appealable to the Merit Systems Protection Board follow one of the processes set forth at 29 C.F.R. § 1614.302.
8. There are several reasons an agency may dismiss a complaint, including the complainant's failure to state a claim, timely contact a counselor, or provide necessary information to the agency. See 29 C.F.R. § 1614.107(a)
9. The 180-day period may be extended 90 days if both parties agree. See 29 C.F.R. § 1614.108(e). 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. See 29 C.F.R. § 1614.108(f).
10. See Jeffery M Senger, Federal Dispute Resolution: Using ADR with the United States Government, 1-7 (Jossey-Bass/John Wiley & Sons, 2003).
11. Counseling may be provided via EEO Counselor or ADR Intake Officer.
12. The EEOC did not collect ADR offer rates until FY 2002.
This page was last modified on April 19, 2005.
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