The U.S. Equal Employment Opportunity Commission

Annual Report on the Federal Work Force
Fiscal Year 2005

United States Equal Employment Opportunity Commission
Office of Federal Operations

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Table of Contents

PREFACE

EXECUTIVE SUMMARY

PART I SUMMARY OF EEO STATISTICS IN THE FEDERAL GOVERNMENT

Section A. Demonstrated Commitment From Agency Leadership

  1. 54% of Agencies Issued EEO Policy Statement on Annual Basis

Section B. Integration of EEO Into Agencies' Strategic Mission

  1. 70% of Agencies' EEO Directors Report to Agency Head
  2. 44% of EEO Directors Presented the State of the EEO Program to Agency Head
  3. 84% of Agencies Provided their EEO staff with Required Training

Section C. Management and Program Accountability

  1. 95% of Agencies Submitted Reasonable Accommodation Procedures
  2. 51% of Surveyed Agencies Did Not Have a Comprehensive Anti-Harassment Policy

Section D. Proactive Prevention of Unlawful Discrimination

  1. Composition of Federal Work Force
    1. Total Work Force: Hispanics and White Women Remain Below Availability
    2. Senior Pay Levels: Women Show Some Progress
    3. General Schedule Positions: Hispanics and Women Improve but Men Average Almost Two Pay Grades Higher Than Women
    4. Federal Wage System Positions: Women, Whites and American Indian/Alaskan Natives Slightly Increase
    5. Other Pay Systems: Women Increase but Still Trail Men
  2. Participation Rate of Individuals with Targeted Disabilities Continues to Fall

Section E. Efficiency in the Federal EEO Process

  1. Federal Agencies' EEO Programs: Complaints Decrease But Processing Times Continue to Exceed Regulatory Deadlines
    1. Pre-Complaint Counselings and Complaints Decline
    2. Pre-Complaint ADR Usage Increases to 41.3%
    3. Agencies Meet Counseling Deadlines in 80.7% of Cases
    4. Agencies Increase Pre-Complaint Resolution Rate in FY 2005
    5. Monetary Benefits in Pre-Complaint Phase Drop
    6. Top Basis and Issue Alleged in Complaints Filed Remains Unchanged
    7. Agencies' Investigation Times Lowest in Five Years Yet Continue to Exceed Time Limits for Investigating Complaints and Issuing Final Agency Decisions
    8. Findings of Discrimination and Monetary Benefits Increase Slightly
    9. High Affirmation Rate of Final Agency Decisions on Appeal
  2. EEOC Hearings and Appeals: Quicker Processing Times and Reduced Inventories
    1. Hearings
    2. Appeals

Section F. Responsiveness and Legal Compliance

  1. 95% of EEOC Form 462 Reports Were Timely

PART II PROFILES FOR SELECTED FEDERAL AGENCIES

APPENDIX I GLOSSARY / DEFINITIONS Appendix

APPENDIX II FEDERAL SECTOR EEO COMPLAINT PROCESSING PROCEDURES

APPENDIX III FEDERAL WORK FORCE & COMPLAINTS PROCESSING TABLES

(Actual tables are only available on EEOC's Web-site at http://www.eeoc.gov/federal/fsp2005/index.html)

PREFACE

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) was established by the Civil Rights Act of 1964, Title VII, with the mission of eradicating discrimination in the workplace. In the federal sector, EEOC enforces Title VII, which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin; the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits employment discrimination against individuals 40 years of age and older; the Equal Pay Act of 1963 (EPA), which prohibits discrimination on the basis of gender in compensation for substantially similar work under similar conditions; and the Rehabilitation Act of 1973 (Rehabilitation Act), which prohibits employment discrimination against federal employees and applicants with disabilities and requires that reasonable accommodations be provided.

The EEOC is charged with monitoring federal agency compliance with equal employment opportunity (EEO) laws and procedures, and reviewing and assessing the effect of agencies' compliance with requirements to maintain continuing affirmative employment programs to promote equal employment opportunity and to identify and eliminate barriers to equality of employment opportunity.

Equal Employment Opportunity Management Directive 715 (MD-715), issued October 1, 2003, established standards for ensuring that agencies develop and maintain model EEO programs. These standards will be used to measure and report on the status of the federal government's efforts to become a model employer. As detailed in MD-715, the six elements of a model EEO program are:

This report covers the period from October 1, 2004, through September 30, 2005 and contains selected measures of agencies' progress toward model EEO programs.1 While working within our mission as an oversight agency, the EEOC strives to create a partnership with agencies. During the cited period, the EEOC sought and received assessment input from EEO Directors through several EEOC-sponsored feedback sessions. The information that we received has been invaluable as we work to achieve excellence in program planning and evaluation. The EEOC plans to continue dialogue with EEO Directors as we work to address the concerns of federal agencies.

The FY 2005 Annual Report on the Federal Work Force, addressed to the President and Congress, presents a summary of selected EEO program activities in the federal government, including a work force profile of 59 federal agencies. The report provides valuable information to all agencies as they strive to become model employers.

To prepare this report, the Commission relied on the following data: 1) work force data obtained from the U.S. Office of Personnel Management's Central Personnel Data File (CPDF); 2) data from the 1990 and 2000 EEO Special Files; 3) EEO complaint processing data submitted and certified as accurate by 94 federal agencies; 4) hearings and appeals data obtained from the EEOC's internal databases; and 5) EEO program data submitted and certified as accurate by 170 of 202 federal agencies and subcomponents in their fiscal year (FY) 2004 MD-715 reports.2

The Commission would like to extend its thanks to the Office of Personnel Management for providing the work force data from the CPDF, and to those agencies which timely submitted accurate and verifiable EEO complaint processing data.

For the first time, this year the Commission provided agencies an opportunity to comment on the draft of this report. The Commission thanks the twenty-one agencies which submitted comments and suggestions, for assisting in the publishing of a more accurate report. While several agencies discovered that incorrect data on its EEO Form 462 Report was previously submitted, the Commission was not at this time able to publish those changes. Agencies are encouraged to submit all Reports to the Commission in a timely and accurate manner to ensure that the state of EEO in the federal work force is reflected correctly.

EXECUTIVE SUMMARY

STATE OF EEO IN THE FEDERAL GOVERNMENT

Part 1

Summary of EEO Statistics in the Federal Government

Section A - Demonstrated Commitment From Agency Leadership

MD-715 requires agency heads and other senior management officials to demonstrate a firm commitment to equality of opportunity for all employees and applicants for employment. Agencies must translate equal employment opportunity into everyday practice and make those principles a fundamental part of agency culture.

1.  54% of Agencies Issued EEO Policy Statement on Annual Basis

Section II(A) of MD-715 provides that "commitment to equal employment opportunity must be embraced by agency leadership and communicated through the ranks from the top down. It is the responsibility of each agency head to take such measures as may be necessary to incorporate the principles of EEO into the agency's organizational structure." In addition, this section establishes that "agency heads must issue a written policy statement expressing their commitment to EEO and a workplace free of discriminatory harassment. This statement should be issued at the beginning of their tenure and thereafter on an annual basis and disseminated to all employees."

Of the 170 agencies and subcomponents that submitted an MD-715 report for FY 2004, 91 (54%) indicated that they had issued an EEO policy statement and would continue to do so.

EEO Program Tips

The following language is shared by the EEOC as a model EEO Policy Statement.

Reaffirmation of EEO Policy Statement
October 4, 2005

As we begin a new fiscal year, I want to take this opportunity to reaffirm our commitment to the principles of equal employment opportunity and non-discrimination. It is the Commission's policy to provide every individual with an equal opportunity in all of its employment programs and to prohibit discrimination in all aspects of the agency's employment policies, practices and activities. This includes but is not limited to outreach, recruitment, hiring, assignments, professional development, terms and conditions of employment, and advancement.

"Practicing what we preach" is of paramount importance if we are to continue to lead by example in serving as keeper of the Nation's laws prohibiting employment discrimination. To discharge our public responsibilities with credibility and integrity, our own individual actions must be beyond reproach. Our noble mission holds us to a higher standard of personal behavior in all we say and do with respect to our workplace interactions and professional actions.

I expect each employee to work to strengthen the Agency's commitment toward becoming a model workplace. This means that our main objective is to have a workplace that is inclusive and supportive of diversity; a workplace that is free of any form of harassment or hostility, where everyone is treated with dignity and respect and can thrive and advance without regard to race, color, sex, religion, national origin, age, disability or any other personal characteristics that have nothing to do with one's ability to successfully perform assigned duties and responsibilities.

Let us always conduct ourselves with professional decorum, advancing the principles of workplace access and inclusion and exercising zero tolerance for prohibitive, discriminatory behavior. I'm counting on you to make us a leader.

Cari M. Dominguez,
Chair, EEOC

Section B - Integration of EEO Into Agencies' Strategic Mission

In order to achieve its strategic mission, an agency must integrate equality of opportunity into attracting, developing, and retaining the most qualified work force. The success of an agency's EEO program ultimately depends upon decisions made by individual agency managers. Therefore, agency managers constitute an integral part of the agency's EEO program. The EEO office serves as a resource to these managers by providing direction, guidance, and monitoring of key activities to achieve a diverse workplace free of barriers to equal opportunity.

As part of integrating EEO into the strategic mission, Section II(B) of MD-715 instructs agencies to ensure that: (1)  the EEO Director has access to the agency head; (2) the EEO office coordinates with Human Resources; (3) sufficient resources are allocated to the EEO program; (4) the EEO office retains a competent staff; (5) all managers receive management training; (6) managers and employees are involved in implementing the EEO program; and (7) all employees are informed of the EEO program. Three aspects of this Section are highlighted below.

1.  70% of Agencies' EEO Directors Report to Agency Head

EEOC's regulations governing agency programs to promote equal employment opportunity require each agency to maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and polices. 29 C.F.R. § 1614.102(a). To implement its program, each agency shall designate a Director of Equal Employment Opportunity who shall be under the immediate supervision of the agency head. 29 C.F.R. §1614.102(b)(4).

Of the 94 agencies (with 100 or more employees) that submitted a Form 462 report in FY 2005, 66 agencies (70.2%) reported that their EEO Director reports to the agency head.

2.  44% of EEO Directors Presented the State of the EEO Program to the Agency Head

In addition to improving the status and independence of EEO, Section II(B) of MD-715 requires that agencies ". . . provide the EEO Director with regular access to the agency head and other senior management officials for reporting on the effectiveness, efficiency, and legal compliance . . ." of the agency's EEO program. Following the submission of the MD-715 report to EEOC, EEO Directors should present the state of the EEO program to the agency head on an annual basis. See Section I of EEOC's Instructions for MD-715.

Of the 170 agencies and subcomponents that submitted an MD-715 report for FY 2004, 75 (44%) indicated that the EEO Director had conducted the briefing.

3.  84% of Agencies Provided Their EEO Staff with Required Training

Section II(B) of MD-715 requires that agencies attract, develop and retain EEO staff with the strategic competencies necessary to accomplish the agency's EEO mission. In order to ensure staff competency within its EEO complaint program, agencies must comply with the mandatory training requirements for EEO counselors and investigators as set forth in MD-110. Agencies using contract staff to perform these functions must ensure these requirements are met.

Chapter 2, Section II of MD-110 requires that new EEO counselors receive thirty-two hours of EEO counselor training and thereafter eight hours of training each year. Likewise, new EEO investigators are required to have thirty-two hours of EEO investigator training and thereafter eight hours of training each year as set forth in Chapter 6, Section II of MD-110.

Of the 94 agencies with 100 or more employees that filed an EEOC Form 462 report in FY 2005, 84% ensured their EEO staff received the required regulatory training. Agencies trained 1,840 new EEO counselors and 351 new EEO investigators. Agencies also provided the required 8-hour annual refresher training to 3,713 EEO counselors and 1,473 EEO investigators. Additionally, agencies reported providing 32-hour training to 74 EEO counselor/investigators and 8-hour training to 144 EEO counselor/investigators. Through the EEOC Training Institute, 25 agencies provided additional MD-715 training for their EEO staff.

Section C - Management and Program Accountability

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. As part of management and program accountability, MD-715 provides that agencies should ensure that: (1) the regular internal audits are conducted of the EEO program; (2) EEO procedures are established; (3) managers and supervisors are evaluated on EEO; (4) personnel policies are clear and consistently implemented; (5) a comprehensive anti-harassment policy has been issued; (6) an effective reasonable accommodation policy has been issued; and (7) findings of discrimination are reviewed. Two aspects of this Section are highlighted below.

1.  95% of Agencies Submitted Reasonable Accommodation Procedures

Section II(C) of MD-715 provides that a model EEO program must "implement effective reasonable accommodation procedures that comply with applicable executive orders, EEOC guidance, the Architectural and Transportation Barriers Compliance Board's Uniform Federal Accessibility Standards and Electronic and Information Technology Accessibility Standards, and ensure that EEOC has reviewed those procedures when initially developed and if procedures are later significantly modified."

To date, EEOC has received 120 reasonable accommodation procedures from agencies and subcomponents and provided feedback to all of those agencies. The EEOC also received 84 resubmissions and provided feedback to all but two agencies. Of the 94 agencies with 100 or more employees that submitted a Form 462 report in FY 2005, 84 (95.4%) provided reasonable accommodation procedures to EEOC.

In a report entitled, "Practical Advice for Drafting and Implementing Reasonable Accommodation Procedures Under Executive Order 13164" (July 19, 2005), EEOC identified pitfalls discovered in many federal agencies' reasonable accommodation policies and provided best practices for developing procedures that comply with EEOC guidance. To assist agencies in improving the quality of reasonable accommodation policies, EEOC encourages agencies to: (1) require immediate processing of all oral requests, without waiting until the written request is received; (2) provide a range of agency officials who can receive accommodation requests; (3) describe step-by-step how to evaluate and resolve a request; (4) describe how and when to conduct an interactive process; (5) describe what types of medical information or documentation can be sought; (6) require an upper-level review before denying a request based on undue hardship; and (7) describe how and when to obtain review by an agency's own medical expert.   See "Policy Guidance on Executive Order 13164:  Establishing Procedures to Facilitate the Provision of Reasonable Accommodation" (October 20, 2000).

While many agencies submitted excellent procedures, EEOC selected the Securities and Exchange Commission's policy as a good example of a reasonable accommodation policy and procedures.

EEO Program Tip

The following language is shared by the EEOC with the Securities & Exchange Commission's permission.

Updated February 2006

Requesting Accommodations

Introduction

About Accommodations

Accommodations enable people with physical or mental disabilities to have access to employment opportunities and public programs equivalent to that of non-disabled people. Accommodations include equipment and services, modified work environments, locations and schedules and restructured jobs. Reassignment to a suitable vacant position is the accommodation of last resort, available only when no other accommodations will work.

Federal Law Requires Employers to Provide Reasonable Accommodations to Qualified Persons with Disabilities

The Rehabilitation Act of 1973, as amended, requires federal agencies to reasonably accommodate qualified individuals with covered disabilities. Reasonable accommodations do not include accommodations that would cause undue hardship to the employer. Individuals have covered disabilities if they have long term physical or mental conditions that substantially impair their ability to perform major life activities (such as seeing, hearing, walking and speaking). Individuals are not disabled if their long term conditions do not substantially impair their ability to perform major life activities when they are compared to most other people in the general population. Individuals are not disabled if their condition is likely to last less than three months regardless of how severely it impacts their ability to perform major life activities. Individuals are qualified when they meet the education, experience and licensing requirements of the position and can perform the essential functions of the position with--or without--reasonable accommodations.

SEC's Policy and Procedures Regarding Accommodations Requests

SEC's policy is to reasonably accommodate qualified persons with disabilities covered by the Rehabilitation Act of 1973 when they request accommodations and accommodations will not cause the SEC undue hardship. This document, "Requesting Accommodations at SEC" is a comprehensive resource guide for everyone involved in the accommodations process. It explains how persons with disabilities should request accommodations, how requests are processed and how requestors may seek review of decisions denying requests.

2.  51% of Surveyed Agencies Did Not Have A Comprehensive Anti-Harassment Policy

Sections II(A) and (C) of EEOC's MD-715 provide that model EEO programs should "issue a written policy statement expressing their commitment to . . . a workplace free of discriminatory harassment" and "establish procedures to prevent . . . harassment." For more information, please review EEOC's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice 915.002 (June 18, 1999) (Enforcement Guidance on Harassment).

In a report entitled, "Model EEO Programs Must Have an Effective Anti-Harassment Program," (October 18, 2005), EEOC found that many federal agencies have a deficient anti-harassment policy.  Of the 43 agencies that participated in the survey, 7% did not have an anti-harassment policy.  More than half (51%) of the agencies' policies did not cover non-sexual bases, and 44% had unclear investigation procedures.  By referring to EEOC's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment By Supervisors, Notice 915.002 (June 18, 1999), the report also encourages agencies to issue an anti-harassment policy that (1) covers all forms of harassment, (2) establishes a prompt, thorough, and impartial investigation process, (3) requires immediate and appropriate corrective action, (4) provides periodic anti-harassment training to all managers and employees; (5) protects complainants and witnesses from retaliation; and (6) protects the confidentiality of individuals who bring claims of harassment.

While many agencies submitted excellent procedures, the EEOC selected the Department of Labor's policy and procedures as a good example of an anti-harassment policy. A section of the policy is provided below.

EEO Program Tips

The following language is shared with the Department of Labor's permission.

POLICY AND PROCEDURES FOR PREVENTING AND ELIMINATING HARASSING CONDUCT IN THE WORKPLACE

  1. 701 Purpose. This Policy is intended to assure that the Department of Labor is taking all necessary steps to prevent sexual harassment and other forms of harassing conduct in the workplace, and to correct harassing conduct that does occur before it becomes severe or pervasive. It updates the Department of Labor's long-standing policy on harassment in light of the Supreme Court's decisions in Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
  2. 702 The Definition of Harassing Conduct. For the purposes of this Policy, harassing conduct is defined as any unwelcome verbal or physical conduct based on any characteristic protected by law when:
    1. The behavior can reasonably be considered to adversely affect the work environment; or
    2. An employment decision affecting the employee is based upon the employee's acceptance or rejection of such conduct.
  3. 703 Policy Against Harassing Conduct. The Department of Labor does not permit harassing conduct by anyone in the workplace. It is the policy of the Department to maintain a work environment free from the harassing conduct described above.

    The Department has determined that the most effective way to limit harassing conduct is to treat it as misconduct, even if it does not rise to the level of harassment actionable under Title VII of the Civil Rights Act of 1964, as amended. A hostile environment claim under Title VII usually requires showing a pattern of offensive conduct. The Department will not wait for such a pattern to emerge. Rather, the Department will act before the harassing conduct is so pervasive and offensive as to constitute a hostile environment. . . . .

    The Department will not tolerate retaliation against any employee for making a good-faith report of harassing conduct under this or any other policy or procedure, or for assisting in any inquiry about such a report. Complaints of such retaliation shall be handled pursuant to the procedures in this Policy.

    This Policy supercedes any and all other previous policies on harassment at the Department of Labor. This Policy is separate and apart from any collective bargaining agreement or statutory complaint process covering harassment.

To view this policy in full see www.eeoc.gov/federal/harass/dol.html

Section D - Proactive Prevention of Unlawful Discrimination

Now, more than ever before, with the increasing expectations of government institutions, federal agencies must position themselves to attract, develop and retain a top-quality work force in order to ensure our nation's continued growth, security and prosperity. To develop this competitive, highly qualified work force, federal agencies must fully utilize the talents of all employees, regardless of race, color, religion, national origin, sex or disability. In order to assist agencies in attaining these goals, on October 1, 2003, MD-715 became effective and set forth "policy guidance and standards for establishing and maintaining effective affirmative programs of equal employment opportunity under Section 717 of Title VII and effective affirmative action programs under Section 501 of the Rehabilitation Act."

As part of the affirmative employment program, agencies must conduct a self-assessment of their work force on at least an annual basis to monitor progress, identify areas where certain groups may be excluded and develop a strategic plan to ensure free and open competition in the work place.

1.  Composition of the Federal Work Force

With the increasing number of new grade and pay systems being adopted throughout the federal government, this year's report provides the composition of the Total Work Force as well as that of employees in four pay structures:

Senior Pay Level pay structures were created by the Civil Service Reform Act of 1978, which established the Senior Executive Service (SES) as a separate personnel system covering a majority of the top managerial, supervisory, and policy-making positions in the Executive Branch of government.

The General Schedule pay system was created by the Classification Act of 1949, which created a centralized job evaluation for all White-Collar positions and merged several separate schedules into one.

The Federal Wage System was established by Public Law 92-392 in 1972 to standardize pay rates for Blue-Collar federal employees.

Today, alternative pay plans are being used and proposed across the government. In this report they are identified as "Other Pay Systems." Some of these systems include pay-banding systems, the Market-Based Pay system of the Army and Air Force Exchange Service, and include such agencies as the United States Postal Service and the Tennessee Valley Authority. Table 1 below shows the representation rates for each of these pay structures.

Table 1 - FY 2005 Federal Work Force Pay Structure Participation Levels
# Work Force % of Total Work Force
Total Work Force 2,610,920 --
Senior Pay Level 19,268 0.74
General Schedule and Related 1,425,499 54.60
Federal Wage System 196,800 7.54
Other Pay Systems 969,353 37.12
a. Total Work Force: Hispanics and White Women Remain Below Availability

In FY 2005, the federal government had a Total Work Force of 2,610,920 employees, compared to 2,532,507 in FY 1996.3 Table 2 shows the participation rate of the identified groups below, as compared to the civilian labor force (CLF). Table A-1 in Appendix III provides ten-year trend data.

Table 2 - Composition of Federal Work Force - Ten-Year Trend: Some Progress, Little Overall Change FY 1996 - FY 20054
Work Force Participation Rate 1990 CLF 2000 CLF
FY 2005 FY 1996 % FY 2005 % % %
Men 1,488,532 58.40 57.01 54.30 53.20
Women 1,112,388 41.60 42.99 45.70 46.80
Hispanic Men 118,474 3.88 4.54 4.80 6.20
Hispanic Women 80,109 2.88 3.07 3.30 4.50
White Men 1,055,859 43.08 40.44 42.60 39.00
White Women 680,191 26.38 26.05 35.30 33.70
Black Men 205,269 8.04 7.86 4.90 4.80
Black Women 272,352 10.27 10.43 5.40 5.80
Asian American/Pacific Islander Men 88,847 2.72 3.40 1.50 2.10
Asian American/Pacific Islander Women 66,231 1.87 2.54 1.30 1.90
American Indian/Alaskan Native Men 20,083 0.68 0.77 0.30 0.50
American Indian/Alaskan Native Women 23,505 0.69 0.90 0.30 0.50
Individuals with Targeted Disabilities 25,142 1.18 0.96

A comparison of the data on the participation rates of persons in particular agency components or specific major occupations can serve as a diagnostic tool to help identify possible areas where barriers to equal opportunity may exist within an agency. This information is located in Tables A-1a and A-6b of Appendix III located at www.eeoc.gov.5

Table 3 - Agencies with the Highest Participation Rate for Title VII and Targeted Disabilities Groups for FY 2005 (Agencies with 500 or More Employees)
Group Agency % 2000 CLF
Men Tennessee Valley Authority 80.02 53.20
Women Defense Education Activity 78.17 46.80
Hispanics Dept. of Homeland Security 16.99 10.70
Whites Nat'l Credit Union Admin. 79.53 72.70
Blacks Court Services and Offender Supervision Agency 80.22 10.60
Asian American/Pacific Islanders Defense Commissary Agency 16.37 4.00
American Indian/Alaskan Natives Dept. of Health & Human Services 16.65 1.00
Individuals With Targeted Disabilities Equal Employment Opportunity Commission 2.16 --
b. Senior Pay Levels: Women Show Some Progress

With a total of 19,268 employees, the Senior Pay Level (SPL) positions comprise 0.74% of the total work force. SPL positions include the SES, Executive Schedule, Senior Foreign Service, and other employees earning salaries above grade 15 in the General Schedule. Table 4 below reflects the SPL representation. More data is reported in Table A-2 of Appendix III.

Table 4 - Senior Pay Level Representation FY 1996 / FY 2005
Senior Pay Level Positions
FY 1996 FY 2005
Number % of SPL Number % of SPL
Total SPL Work Force 15,135 -- 19,268 --
Men 12,056 79.66 14,205 73.72
Women 3,079 20.34 5,063 26.28
Hispanics 379 2.50 683 3.54
Whites 13,419 88.66 16,505 85.66
Blacks 975 6.44 1,275 6.62
Asian Americans/Pacific Islanders 273 1.80 654 3.39
American Indians/Alaskan Natives 89 0.59 151 0.78
Individuals with Targeted Disabilities 62 0.41 88 0.46
Table 5 - Ranking of Agencies with the Highest Percentage of Women in Senior Pay Level Positions in FY 2005 (Agencies With 500 Or More Employees)
Agency Total Work Force
#
SPL
#
Women in Senior Pay Level Positions
# %
Defense Security Service 525 3 2 66.67
Corp. for National and Community Service 587 20 12 60.00
Defense Human Resource Activity 795 13 7 53.85
Defense Education Activity 16,439 22 11 50.00
Court Services and Offender Supervision Agency 1,082 12 6 50.00
c. General Schedule Positions: Hispanics and Women Improve but Men Average Almost Two Pay Grades Higher Than Women
Table 6 - General Schedule & Related (GSR) Representation FY 1996 / FY 2005
GSR Positions
FY 1996 FY 2005
Number % of GSR Number % of GSR
Total GSR Work Force 1,393,462 -- 1,425,499 --
Men 714,161 51.25 728,508 51.10
Women 679,301 48.75 696,991 48.90
Hispanics 80,014 5.74 104,976 7.36
Whites 1,001,141 71.85 975,313 68.42
Blacks 234,488 18.83 247,285 17.35
Asian Americans/Pacific Islanders 53,325 3.83 69,823 4.90
American Indians/Alaskan Natives 24,494 1.76 28,102 1.97
Individuals with Targeted Disabilities 17,167 1.23 14,972 1.05

Figure 1 - Average Grade in the General Schedule FY 2005


Figure 1 - Average Grade in the General Schedule
d. Federal Wage System Positions: Women, Whites and American Indian/Alaskan Natives Slightly Increase
Table 7 - Federal Wage System (FWS) Representation FY 1996 / FY 2005
Federal Wage System (FWS) Positions
FY 1996 FY 2005
Number % of FWS Number % of FWS
Total FWS Work Force 242,155 -- 196,800 --
Men 218,610 90.28 175,272 89.10
Women 23,545 9.72 21,528 10.94
Hispanics 19,152 7.91 15,443 7.85
Whites 159,391 65.82 131,063 66.60
Blacks 46,203 19.08 35,834 18.21
Asian Americans/Pacific Islanders 11,865 4.90 9,342 4.75
American Indians/Alaskan Natives 5,544 2.29 5,118 2.60
Individuals with Targeted Disabilities 3,777 1.73 2,291 1.20
e. Other Pay Systems: Women Increase but Still Trail Men
Table 8 - Other Pay Systems (OPS) Representation FY 1996 - FY 2005
Other Pay Systems (OPS) Positions
FY 1996 FY 2005
Number % of OPS Number % of OPS
Total OPS Work Force 956,334 -- 969,353 --
Men 580,594 60.71 570,547 58.86
Women 375,740 39.29 398,806 41.14
Hispanics 63,751 6.67 77,481 7.99
Whites 636,379 66.54 613,169 63.26
Blacks 189,850 19.85 193,227 19.93
Asian Americans/Pacific Islanders 58,188 6.08 75,259 7.76
American Indians/Alaskan Natives 8166 0.85 10,217 1.05
Individuals with Targeted Disabilities 8965 0.94 7,791 0.80

2. Participation Rate of Individuals with Targeted Disabilities Continues to Fall

Table 9 - Ranking of Agencies With the Highest Percent of Individuals With Targeted Disabilities (Agencies With 500 Or More Employees)
Agency Total Work Force Individuals with Targeted Disabilities
# %
Equal Employment Opportunity Commission 2,363 51 2.16
Social Security Administration 66,147 1,391 2.10
Defense Finance and Accounting Service 13,388 271 2.02
Defense Logistics Agency 21,501 430 2.00
Treasury, U.S. Department of 107,753 1,964 1.82

Table A-6b in Appendix III contains this information for all agencies.

EEO Program Tip

All agencies are strongly encouraged to effect steady and measurable progress with respect to the employment and advancement of individuals with disabilities. To increase participation rates of Individuals with Targeted Disabilities, agencies should:

Consult OPM's "Model Federal Agency Plan for the Employment of People with Disabilities," located on OPM's website at: http://www.opm.gov/disability/hrpro_8-04.asp

Section E - Efficiency in the Federal EEO Process

EEOC's regulations provide that each agency shall "assure that individual complaints are fairly and thoroughly investigated and that final action is taken in a timely manner." 29 C.F.R. § 1614.102(c)(5). Section II(E) of MD-715 establishes that a model EEO program must have an efficient and fair dispute resolution process and effective systems for evaluating the impact and effectiveness of their EEO programs. In this regard, Section II(E) recommends that agencies "benchmark against EEOC regulations at 29 C.F.R. Part 1614 and other federal agencies of similar size which are highly ranked in EEOC's Annual Report on the federal sector complaints process."

1. Federal Agencies' EEO Programs: Complaints Decrease But Processing Times Continue to Exceed Regulatory Deadlines

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.8 The agency will either dismiss 9 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 was filed.10

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 on the appeal. In addition, during various points in the process, 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, the EEOC has encouraged agencies to promote and expand the use of alternative dispute resolution as a means of avoiding formal adjudication processes. Used properly, ADR can provide fast and cost-effective results while at the same time improve workplace communication and morale.11

a. Pre-Complaint Counselings and Complaints Decline

Instances of counseling decreased by 3.2% from FY 2004 to FY 2005 and decreased 13.8% from FY 2001. Formal complaints declined by 5.3% in FY 2005 and 22.7% from FY 2001. Of the 41,070 instances of counseling, 16,495 individuals filed 18,017 formal complaints in FY 2005.12 The number of formal complaints filed represents 43.9% of all pre-complaint counseling activities in FY 2005. 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 41,070 in FY 2005, 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 28.9% of the work force, it accounted for over 38% of all EEO counselings, complaints filed, completed investigations and complaints closed in FY 2005. See Table B-1 in Appendix III.

Figure 2 - Counseling to Formal Complaints Filed FY 2001 - FY 2005


Figure 2 - Counseling to Formal Complaints Filed FY 2001 - FY 2005
National Endowment for the Arts Had Highest Percentage of Its Work Force Who Completed Counseling

Table 10 below shows that in FY 2005, the National Endowment for the Arts reported the highest counseling rate (24.2%), while the government-wide average was 1.4%. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. Table B-1 in Appendix III lists this information for all agencies.

Table 10 - Agencies with the Highest Counseling Rate In FY 2005
Agency Total Work Force Percentage of Individuals Who Completed Counseling
National Endowment for the Arts 161 24.2%
Commodity Futures Trading Commission 511 13.7%
Broadcasting Board of Governors 1,762 7.5%
Defense - Office of Inspector General 1,381 2.8%
Defense Logistics Agency 20,650 2.3%
Department of Education and Broadcasting Board of Governors Had Highest Complaint Rate

As shown in Table 11 below, in FY 2005 the Department of Education and Broadcasting Board of Governors reported the highest complaint rate (1.7%), while the government-wide average was 0.6%. Agencies that had fewer than 25 complaints filed were not included in the ranking. Table B-1 in Appendix III contains this information for all agencies.

Table 11 - Agencies with the Highest Complaint Rate in FY 2005
Agency Total Work Force Percentage of Complainants
Department of Education 4,436 1.7%
Broadcasting Board of Governors 1,762 1.7%
Equal Employment Opportunity Commission 2,358 1.1%
Department of Housing and Urban Development 9,554 1.1%
Defense Commissary Agency 15,923 0.9%
b. Pre-Complaint ADR Usage Increases to 45.4%

In FY 2005, ADR was used in 45.4% of all instances of EEO counseling, which represents an increase of 2.1 percentage points from the ADR participation rate (43.3 percent) in FY 2004 and a 22.7% increase from FY 2002. See Figure 3. Although the ADR offer rate decreased to 76.0% in FY 2005 from 79.5% in FY 2004, the increase in the participation rate indicates more employees are opting to utilize the ADR process.

Figure 3 - ADR Usage in the Pre-Complaint Process FY 2004 - FY 2005 13


Figure 3 - ADR Usage in the Pre-Complaint Process
The U.S. Postal Service Had Highest ADR Participation Rate in FY 2005

In FY 2005, the U.S. Postal Service reported the highest ADR participation rate in the pre-complaint process (76.5%), while the government-wide average was 45.4%. See Table 12. Agencies that had fewer than 25 completed/ended counseling were not included in the ranking. See Tables B-1 and B-4 in Appendix III for information on all agencies.

Table 12 - Highest ADR Participation Rate in the Pre-Complaint Process FY 2005
Agency Total Work Force Completed/ Ended Counselings Participation in ADR Participation Rate
U.S. Postal Service 800,742 18,349 14,028 76.45%
Defense Intelligence Agency 0 26 15 57.69%
National Archives and Records Administration 18,891 38 19 50.00%
Federal Deposit Insurance Corporation 4,637 54 24 44.44%
Department of Homeland Security 157,522 2,221 921 41.47%

EEO Program Tips

To improve ADR programs:

Maintain a One-Stop Shop - an office that attempts to informally resolve a variety of workplace disputes including the EEO process, MSPB process, and administrative grievance process.

Conduct a pre-ADR meeting - prior to the ADR session, explain the ADR process, clarify the issues in dispute, and determine the scope of settlement authority. Since the ground rules are discussed prior to the ADR session, the parties are able to start discussing the issues as soon as the ADR session begins.

Designate settlement officials - select management officials who were not involved in the dispute as the agency representative with settlement authority who attends the ADR sessions. A settlement official may be more objective and could have broader authority to resolve disputes than a responsible management official.

Even if ADR was not successful at the pre-complaint stage, attempt ADR after the report of investigation has been completed - since both parties have the opportunity to assess the strengths and weaknesses of their case, ADR may motivate the parties to resolve the dispute.

c. Agencies Meet Counseling Deadlines in 80.7% of Cases

Best Practices - Improving Counseling Times

See the Commission's "Attaining a Model Agency Program: Efficiency" report located on the web at http://www.eeoc.gov/federal/efficiency.html

On average, in FY 2005 agencies meet timeliness requirements for EEO counseling in 80.7% of all completed/ended counselings which is up from 76.3% in FY 2004 and 77.42% in FY 2001. 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.

d. Agencies Increase Pre-Complaint Resolutions Rate in FY 2005

During counseling and ADR in the pre-complaint stage, EEO disputes can be resolved by either a settlement or a decision not to file a formal complaint. In FY 2005, the government-wide average was 53.7%, up from 50.7% in FY 2004.

Commodity Futures Trading Commission Had Highest Pre-Complaint Resolution Rate

In FY 2005, the Commodity Futures Trading Commission reported the highest pre-complaint resolution rate (98.9%). See Table 13. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. Table B-3 in Appendix III contains this information for all agencies.

Table 13 - Highest Pre-Complaint Resolution Rates FY 2005
Agency Total Work Force Completed Counselings Resolution Rate
Commodity Futures Trading Commission 511 93 98.9%
National Endowment for the Arts 161 47 85.1%
Defense Office of the Inspector General 1,381 39 84.6%
Broadcasting Board of Governors 1,762 178 82.6%
Defense Army and Air Force Exchange 36,461 588 77.9%
The Defense Logistics Agency Had Highest ADR Resolution Rate in FY 2005

In FY 2005, the Defense Logistics Agency reported the highest ADR resolution rate in the pre-complaint process (89.6%), whereas the government-wide average was 50.5%. See Table 14. When the U.S. Postal Service resolution rate (49.1%) is excluded from the government-wide average, the government-wide ADR resolution rate increased to 54.9% in FY 2005. Agencies that had fewer than 25 ADR closures were not included in the ranking. Table B-5 in Appendix III contains this information for all agencies.

Table 14 - Highest Pre-Complaint ADR Resolution Rates FY 2005
Agency Total Work Force ADR Closures ADR Resolutions ADR Resolution Rate
Defense Logistics Agency 20,650 48 43 89.6%
Defense Finance and Accounting Service 13,483 27 20 74.1%
Defense National Guard Bureau 59,129 27 20 74.1%
Department of Justice 106,982 77 57 74.0%
Department of Housing and Urban Development 9,554 30 22 73.3%
e. Monetary Benefits in Pre-Complaint Phase Drop

The monetary benefits awarded in settlements during the pre-complaint phase, shown in Table 15, have dropped significantly since FY 2001. The data showed a decrease in the average amount of monetary benefits from $5,203 in FY 2004 to $2,912 in FY 2005.

Table 15 - Monetary Benefits Awarded In Settlements During the Pre-Complaint Stage of the EEO Process FY 2001 - FY 2005
FY Completed Counselings Total Resolutions Total Settlements Total Settlements with Monetary Benefits Settlement Monetary Benefits Average Award per Resolution with Monetary Benefits
# % # % # %
2001 47,658 24,357 51.1 11,950 25.1 983 8.2 $4,470,855 $4,548
2002 56,275 34,330 61.0 9,050 16.1 568 6.3 $2,527,538 $4,450
2003 45,030 28,011 62.2 8,199 18.2 621 7.6 $3,160,565 $5,089
2004 42,412 21,520 50.7 7,856 18.5 603 7.7 $3,137,911 $5,203
2005 41,070 22,038 53.7 7,652 18.7 585 7.7 $1,703,626 $2,912
f. Top Basis and Issue Alleged in Complaints Filed Remains Unchanged

Of the 18,017 complaints filed in FY 2005, the top basis alleged was reprisal (7,105) and the top issue was non-sexual harassment (4,550). As shown in Tables 16 and 17, this trend has remains unchanged for the past five years.

Table 16 - Top 3 Bases in Complaint Allegations Filed for FY 2001 - FY 2005
Basis FY 2001 FY 2002 FY 2003 FY 2004 FY 2005
Reprisal 9,082 8,095 8,111 7,782 7,105
Age 5,774 5,344 5,774 5,449 5,088
Race - Black 6,152 5,647 5,279 5,021 4,478
Table 17 - Top 3 Issues in Complaint Allegations Filed for FY 2001 - FY 2005
Issue FY 2001 FY 2002 FY 2003 FY 2004 FY 2005
Harassment - Non-Sexual 6,082 5,431 5,689 5,175 4,550
Promotion/Non-Selection 4,685 3,664 4,435 3,892 2,937
Terms/Conditions 3,431 3,172 2,541 2,474 2,300
g. Agencies' Investigation Times Lowest in Five Years, yet, Continue to Exceed Time Limits for Investigating Complaints and Issuing Final Agency Decisions
Investigations

Investigations into allegations of discrimination are a key component of the formal EEO complaint process. Delays may impede the primary goal of gathering sufficient evidence to permit a determination as to whether discrimination occurred. EEOC regulation 29 C.F.R. § 1614.106(e)(2) requires agencies to conduct an investigation and issue a report to the complainant within 180 days of the filing of a complaint unless: 1) the parties agreed to no more than a 90-day extension (may not exceed 270 days); and 2) the complaint was amended or consolidated, which can add another 180 days to the period but may not exceed 360 days.

In FY 2005, agencies were timely in completing investigations 54.9% of the time, up from 42.7% in FY 2004 (including written agreements to extend the investigation and consolidated or amended complaints). When the U.S. Postal Service is not included, the percentage of timely completed investigations decreased to 49.7% government-wide. Agencies reported the best investigation time in five years by averaging 237 days to complete an investigation in FY 2005. In comparison, agency investigations averaged 280 days in FY 2004 and 240 days in FY 2001. See Figure 4 below.

Figure 4 - Average Processing Days For Investigations for FY 2001 - FY 2005


Figure 4 - Average Processing Days For Investigations for FY 2001 - FY 2005

Of those investigations completed within the 180-day time limit, agency investigators averaged 132.6 days to complete the investigation, while agency contract investigators averaged 124.3 days. Similarly, of those investigations completed within the 181 to 360-day time limit (complaints amended, consolidated or extended by the parties), agency investigators averaged 251.9 days to complete the investigation while contract investigators averaged 240 days.

Federal agencies fail to timely investigate claims of discrimination for many reasons. After reviewing the investigatory practices of selected agencies, EEOC has identified several reasons for untimely investigations: poorly staffed EEO offices, unnecessary and time-consuming procedures,14 delays in obtaining affidavits, and inadequate tracking and monitoring systems. For more information, see EEOC's Federal Sector Investigations - Time and Cost, issued June 2005 and Attaining a Model Agency Program: Efficiency at http://www.eeoc.gov/federal/.

Tennessee Valley Authority Completed Highest Percentage of Timely Investigations

As shown in Table 18, the Tennessee Valley Authority timely completed 98% of its investigations. Agencies that had completed fewer than 25 investigations were not included in the ranking. Table B-9 in Appendix III contains this information for all agencies.

Table 18 - Highest Percentage of Timely Completed Investigations for FY 2005
Agencies Total Work Force Number Completed Investigations Number Timely Completed % Timely
Tennessee Valley Authority 12,703 52 51 98.0
General Services Administration 12,812 54 51 94.4
Defense Finance and Accounting Service 13,483 50 43 86.0
Department of Health and Human Services 64,643 158 127 80.4
Department of Transportation 55,604 210 160 76.2
Final Agency Actions

EEOC regulations require an agency to take a final action on each formal complaint filed. Table 19 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 an average of 150 days to issue a decision dismissing a complaint on procedural grounds. The EEOC maintains that, 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 2005, agencies timely issued 59.1% of their final agency merit decisions, an increase from the 43.6% timely completed in FY 2004. 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. In FY 2005, the agencies' average processing time for issuing final decisions was 191 days, down from 200 days in FY 2004.

Finally, when an EEOC Administrative Judge has issued a decision, the agency must issue a final order either implementing or not implementing the Administrative Judge's decision and simultaneously appealing to the EEOC. In FY 2005, agencies issued 5,017 final orders implementing and 87 orders not implementing the Administrative Judge's decision. Commission regulations require agencies to issue an order within 40 calendar days of receiving the Administrative Judge's decision. In FY 2005, agencies issued orders in an average of 191 days after receiving the Administrative Judge's decision, which is down from 200 days in FY 2004.

Table 19 - EEO Complaint Closures by Type with Government-Wide Average Processing Times in Days (APD) in FY 2001 - FY 2005
FY Complaint Closures Merit Final Agency Actions With AJ Decisions Merit Final Agency Decisions Without AJ Decisions Procedural Dismissals Settlements Withdrawals
Total APD Total APD from Comp. Filed Total APD APD from Date Required % Timely* Total APD Total APD Total APD
2001 25,193 464 3,830 800 5,247 539 -- -- 8,308 N/A 5,261 523 2,547 389
2002 22,889 418 3,841 833 5,467 474 -- -- 5,770 N/A 5,606 482 2,205 309
2003 19,772 541 3,893 796 5,287 598 -- -- 2,723 207 5,573 507 2,296 380
2004 23,153 469 4,748 743 6,167 601 200 43.6% 5,444 150 4,469 473 2,325 308
2005 22,974 411 4,832 669 6,381 479 191 59.1% 5,510 127 4,264 436 1,997 294

* The EEOC did not collect data showing the timely merit Final Agency Decisions until FY 2004.

Defense Commissary Agency Issued the Highest Percentage of Timely Merit Decisions Without an Administrative Judge Decision

Best Practices - Final Action Times

See the Commission's "Attaining a Model Agency Program: Efficiency" report located on the web at http://www.eeoc.gov/federal/efficiency.html

In FY 2005, the Defense Commissary Agency reported the highest percentage (100%) of timely issued merit decisions without an Administrative Judge decision. See Table 20 below.15 Agencies that issued fewer than 25 merit decisions without a hearing were not included in the ranking. See Table B-14 in Appendix III for this information on all agencies located at www.eeoc.gov.

Table 20 - Agencies With the Highest Percentage of Timely Issued Merit Decisions (Without an Administrative Judge Decision) in FY 2005
Agencies Total Work Force Merit Decisions without an AJ Decision
# Timely %
Defense Commissary Agency 15,923 40 40 100.0%
U.S. Postal Service 800,742 2,791 2,507 89.8%
Department of the Navy 187,535 189 145 76.7%
Department of the Treasury 123,454 224 144 64.3%
Department of Transportation 55,604 96 60 62.5%
h. Findings of Discrimination and Monetary Benefits Increase Slightly

Since FY 2001, the number of findings of discrimination has increased in the federal government. Table 21 below shows that both the total number of merit decisions and the number of findings of discrimination have increased over the past three years. For the first time in five years, over 3% of merit decisions resulted in a finding of discrimination.

Table 21 - Amounts Awarded in Resolution of Formal EEO Complaints Before Appeals FY 2001 - FY 2005
Total Complaint Closures Findings of Discrimination Settlements Monetary Benefits
FY # Total Merit Decisions # % of Merits Decisions # % of Total Closures # Total Complaint Closures with Benefits % of Total Complaint Closures with Benefits Total (in millions) Per Capita
2001 25,193 9,077 261 2.9% 5,261 20.8% 5,522 21.9% $32.9 $5,965
2002 22,889 9,308 248 2.7% 5,606 24.5% 5,854 25.6% $33.5 $5,727
2003 19,772 9,180 264 2.9% 5,573 28.2% 5,823 29.5% $40.3 $6,926
2004 23,153 10,915 321 2.9% 4,469 19.3% 4,739 20.5% $29.7 $6,266
2005 22,974 11,213 345 3.1% 4,264 18.6% 4,525 19.7% $51.7 $11,417

Average monetary benefits awarded in resolution of formal EEO complaints increased by 42.5% between FY 2004 and FY 2005 and 36.2% between FY 2001 and FY 2005. Table 21 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, attorneys' fees and lump sum payments.

Figure 5 - Monetary Benefits Awarded in the Formal Complaint Stage FY 2001 - FY 2005


Figure 5 - Monetary Benefits Awarded in the Formal Complaint Stage FY 2001 - FY 2005
i. High Affirmation Rate of Final Agency Decisions on Appeal

As demonstrated by the table below, in FY 2005 over 78% of final agency decisions (FADs), excluding those in which an AJ issued a decision, were affirmed on appeal in FY 2005. Although the percentage has declined slightly from FY 2004, the five-year trend has shown nearly a 5% increase of affirmed FADs since FY 2001.

Table 22 - Affirmation Rate of Final Agency Decisions on Appeal FY 2001 - FY 2005
Fiscal Year FADs Decided on Appeal FADs Affirmed on Appeal Percentage of FADs Affirmed on Appeal
FY 2001 4,760 3,464 72.8%
FY 2002 4,617 3,566 77.2%
FY 2003 3,599 2,888 80.2%
FY 2004 3,563 2,876 80.7%
FY 2005 3,316 2,595 78.3%

2. EEOC Hearings and Appeals: Quicker Processing Times and Reduced Inventories

By federal regulation, the EEOC becomes involved in the handling of an EEO complaint from a federal employee after the case has been initially processed by the employing agency and a hearing has been requested before an EEOC Administrative Judge or an appeal from a final agency action has been filed.

If a complainant requests a hearing, an EEOC Administrative Judge may oversee discovery between the parties, and hold a hearing or issue a decision on the record. If a hearing is held, the Administrative Judge will hear the testimony of witnesses, review relevant evidence, and make findings of fact and conclusions of law in a decision issued to the parties. In appropriate cases, an Administrative Judge may, in lieu of holding a hearing, procedurally dismiss a case or issue a decision by summary judgment.

EEOC is also responsible for deciding appeals from final actions issued by federal agencies on complaints of employment discrimination. These final actions may involve an agency's decision to procedurally dismiss a complaint, a final decision on the merits of a complaint when the complainant has not requested a hearing, or a decision on whether or not to fully implement the decision of an EEOC Administrative Judge. Once appellate decisions are issued, the EEOC monitors agency compliance with all orders and takes appropriate action to enforce them. The EEOC's adjudicatory responsibilities also include resolving allegations of a breach of a settlement agreement involving a federal sector EEO complaint, as well as deciding petitions for review of decisions by the Merit Systems Protection Board and petitions for review of a final grievance decision where claims of discrimination are properly raised.

Equally as important as its adjudicatory role, EEOC is vigorously engaged in assisting federal agencies in the proactive prevention of discrimination. The EEOC's Office of Federal Operations (OFO) provides outreach, technical assistance and oversight to federal agencies, including conducting program reviews throughout the federal government to evaluate agencies' efforts to develop and maintain model EEO programs. The OFO monitors and evaluates agencies' activities to identify and correct barriers to equal opportunity, reasonable accommodation procedures for individuals with disabilities, and ADR programs. OFO also gathers and analyzes data provided by federal agencies on employment trends and EEO complaint processing; issues periodic reports which are publicly available; and works with individual agencies to identify both positive and negative trends in their EEO programs. In addition, through the EEOC's Revolving Fund, OFO develops and delivers training to federal agencies and other interested parties on a wide variety of federal sector equal EEO topics.

a. Hearings
i. Hearings Inventory Continues to Decline

The hearings inventory decreased from 5,975 in FY 2004 to 5,896 in FY 2005, which represents a decline of 1.3%. Since FY 2001, the hearings inventory has fallen by 49.4% from a high of 11,659 cases. The decrease in hearing requests has contributed to a reduction in the hearings inventory.

Figure 6 - Hearings Inventory FY 2000 - FY 2005


Figure 6 - Hearings Inventory FY 2000 - FY 2005
ii. Hearing Requests Up

Hearing requests increased by 13.7% from 9,027 hearing requests in FY 2004 to 10,266 in FY 2005, and have increased by 4.6% from FY 2001. For comparison purposes, the 10,266 hearings requested comprised 57.0% of the total complaints filed in FY 2005.

Figure 7 - Comparison of Requests for EEOC Hearings to Complaints Filed FY 2001 - FY 2005


Figure 7 - Hearings Inventory FY 2000 - FY 2005
iii. Hearing Closures

During FY 2005, the EEOC's Hearings Program resolved 10,221 cases, including 78 class actions, which represents a 12.9% decrease from the 11,740 cases closed in FY 2004 and an 8.7% increase from the 9,402 cases closed in FY 2001.

Excluding the class actions, the 10,143 individual cases in FY 2005 were closed in the following manner: 12.5% were by decision following a hearing; 32.3% were by decisions on the record; 25.1% were closed by settlements; 13.2% were by procedural dismissal; and 17.0% were withdrawals. See Table 23 for a comparison of FY 2001 - FY 2005.

Table 23 - Hearings Program Individual Case Closures: FY 2001 - FY 2005
Closure Type FY 2001 FY 2002 FY 2003 FY 2004 FY 2005
# % # % # % # % # %
Decisions Following a Hearing 1,626 17.5 2,004 17.3 1,974 16.3 1,655 14.2 1,268 12.5
Decisions On the Record 1,970 21.1 2,274 19.7 2,804 23.1 3,481 30.0 3,272 32.3
Settlements 3,080 33.1 3,841 33.2 3,951 32.6 3,180 27.4 2,546 25.1
Procedural Dismissals 1,276 13.7 1,556 13.5 1,551 12.8 1,550 13.3 1,336 13.2
Withdrawals 1,364 14.7 1,893 16.4 1,844 15.2 1,760 15.1 1,721 17.0
Total Individual Case Closures 9,316 -- 11,568 -- 12,124 -- 11,626 -- 10,143 --
iv. Average Processing Time Drops for Hearings

For the second year, the average processing time for hearing closures fell from 355 days in FY 2004 to 249 days in FY 2005, representing a significant decrease from the 343 days in FY 2001.16 The average age of the pending inventory increased to 207 days in FY 2005 from 183 days in FY 2004, but was still significantly lower than the 453 days in FY 2001.

Figure 8 - Average Processing Days for Hearings FY 2001 - FY 2005


Figure 8 - Average Processing Days for Hearings FY 2001 - FY 2005
v. Agencies Challenge Findings of Discrimination

In FY 2005, EEOC Administrative Judges issued 232 decisions finding discrimination which was 5.1% of all decisions on the merits of complaints. In comparison to the 329 decisions finding discrimination that Administrative Judges issued in FY 2004, the 232 decisions in FY 2005 represent a decrease of 29.5%. Agencies may either fully implement or appeal the Administrative Judge's decision to the EEOC's Office of Federal Operations (OFO). In FY 2005, agencies appealed only 1.7% of all Administrative Judge decisions; however, they appealed 30.3% of the cases where an Administrative Judge found discrimination.

Table 24 - Agency Actions on Administrative Judge Decisions FY 2001 - FY 2005
FY Finding Discrimination17 Finding No Discrimination Totals
Implemented Appealed Implemented Appealed Implemented Appealed
# % # % # % # % # % # %
2001 194 71.3% 78 28.7% 3,636 98.8% 44 1.2% 3,830 96.9% 122 3.1%
2002 197 65.0% 106 35.0% 3,644 100% 0 0% 3,841 97.3% 106 2.7%
2003 159 63.3% 92 36.7% 3,639 99.9% 3 0.1% 3,798 97.6% 95 2.4%
2004 124 71.3% 50 28.7% 4,515 98.7% 59 0.3% 4,639 97.8% 109 2.2%
2005 182 69.7% 79 30.3% 4,567 99.9% 4 0.1% 4,749 98.3% 83 1.7%
vi. Monetary Benefits Increase at Hearings

In FY 2005, Administrative Judge decisions and settlements at the hearings stage awarded $58.7 million in benefits, exceeding the $45.9 million in FY 2004 and the $44.3 million awarded in FY 2001. This reversed a two-year trend of decreasing monetary benefits at the hearing stage. Note that benefits at the hearings stage are preliminary, pending a decision on implementation by the agency or on appeal.

Figure 9 - Monetary Benefits Awarded from Hearings (In Millions of Dollars) FY 2001 - FY 2005


Figure 9 - Hearings Inventory FY 2000 - FY 2005
vii. High Affirmation Rate of AJ Decisions on Appeal

As demonstrated by the table below, over 94% of AJ decisions were affirmed on appeal in FY 2005.18 Although the percentage has declined for the last two years, the five-year trend has shown nearly a 5% increase of affirmed AJ decisions since FY 2001.

Table 25 - Affirmation Rate of AJ Decisions on Appeal FY 2001 - FY 2005
Fiscal Year AJ Decisions Appealed AJ Decisions Affirmed on Appeal % of AJ Decisions Affirmed on Appeal
Total Appeal By Agency19 Appeal By Appellant Total Appeal By Agency Appeal By Appellant Total Appeal By Agency Appeal By Appellant
2001 1,310 26 1,284 1,174 17 1,157 89.6% 65.4% 90.1%
2002 2,033 57 1,976 1,811 37 1,774 89.1% 64.9% 89.8%
2003 1,772 123 1,649 1,703 87 1,616 96.1% 70.7% 98.0%
2004 1,828 152 1,676 1,741 107 1,634 95.2% 70.4% 97.5%
2005 1,712 93 1,619 1,616 71 1,545 94.4% 76.3% 95.4%
b. Appeals
i. Appeals Inventory Steadily Declines

OFO's appellate inventory declined in FY 2005 to 3,610, which represents a 0.7% reduction from the 3,634 case inventory at the close of FY 2004 and a significant reduction of 52.1% from the 7,536 cases in inventory at the close of FY 2001.

Figure 10 - Appellate Inventory FY 2001 - FY 2005


Figure 10 - Appellate Inventory FY 2001 - FY 2005
ii. Appeal Receipts Reverse Two-Year Upward Trend

OFO received 7,490 appeals in FY 2005, representing a 4.4% decrease from the 7,831 appeals filed in FY 2004, and reversing the two-year upward trend from FY 2003 through FY 2004. FY 2005 appeal receipts, however, still represented an 8.6% increase from the 6,894 appeals received in FY 2001.

Figure 11 - Comparison of Appeals Receipts to Complaint Closures FY 2001 - FY 2005


Figure 11 - Comparison of Appeals Receipts to Complaint Closures FY 2001 - FY 2005
iii. Appeal Closures Steady

OFO closed a total of 7,514 cases in FY 2005, of which 5,831 (77.6%) alleged violations of Title VII; 2,040 (27.1%) appeals involved the Rehabilitation Act; 1,941 (25.8%) appeals alleged violations of the ADEA; and 1 (0.01%) appeal involved the Equal Pay Act of 1963. In FY 2004, OFO closed a total of 8,028 cases, of which 6,224 were Title VII cases (77.5%); 2,046 appeals involved the Rehabilitation Act (25.5%); 2,093 appeals alleged violations of the ADEA (26.1%); and four appeals involved the Equal Pay Act of 1963 (0.1%).20 See Figure 12 for the appeals closures from FY 2001 to FY 2005.

Figure 12 - Appeals Closures FY 2001 - FY 2005


Figure 12 - Appeals Closures FY 2001 - FY 2005

Table 26 below, provides a breakdown by appeal type of all FY 2005 receipts and closures.

Table 26 - Types of Receipts and Appeals FY 2005
Types of Appeals Receipts Closures
# % of Total # % of Total
Total 7,490 7,514
Initial Appeals from Complainants 5,992 80.0 5,993 79.8
Initial Appeals from Agencies 103 1.4 123 1.6
Petitions to Review MSPB Decisions 86 1.1 98 1.3
Appeals from a Grievance/Arbitration of FLRA Decisions 12 0.2 21 0.3
Petitions for Enforcement 31 0.4 42 0.5
Requests for Reconsiderations 1,266 16.9 1,237 16.5

In FY 2005, OFO closed 3,000 appeals addressing the merits of the underlying discrimination claims, and made a total of 145 findings of discrimination or 4.8% of the total. In FY 2004, OFO closed 3,451 appeals addressing the merits of the underlying discrimination claims, and made a total of 226 findings of discrimination or 6.5% of the total. OFO reversed 21.8% of the 3,682 appeals which addressed procedural closures in FY 2005.

iv. Average Processing Time of Appeal Closures Decreases

The average processing time for appeal closures fell to 194 days in FY 2005, representing a 6.3% decrease from 207 days in FY 2004, and a 56.6% decrease from 447 days in FY 2001. OFO resolved 3,899 (52.0%) of the 7,490 appeals received in FY 2005, within 180 days. The average age of an open appeal in the inventory at the end of FY 2005 was 198 days, a 15.8% increase from the 171-day average age at the end of FY 2004 and a 55.7% reduction from the 430-day average age of the open inventory at the end of FY 2001.

Figure 13 - Average Processing Days on Appeal FY 2001 - FY 2005


Figure 13 - Average Processing Days on Appeal FY 2001 - FY 2005
v. Top Three Bases and Issues on Appeal Remain Unchanged

In FY 2004 and FY 2005, reprisal, race (Black) and disability have remained the top three most prevalent bases of discrimination in appeals. For the same period, promotion, harassment (non-sexual) and removal were the top three issues of discrimination in appeals.

vi. $15.1 Million Awarded on Appeal

In FY 2005, the $15.1 million in monetary benefits awarded in compliance with appellate decisions (including settlement agreements resolving appeals) decreased by 31.7% from the $22.1 million awarded in FY 2004, and increased 81.9% from the $8.3 million awarded in FY 2001.

Figure 14 - Monetary Benefits Awarded from Appeals21 FY 2001 - FY 2005 (In Millions of Dollars)


Figure 14 - Appeals Closures FY 2001 - FY 2005
vii. Training and Outreach Conducted By OFO Increase in FY 2005

In FY 2005, EEOC staff members reached a record number of federal employees, informing them of their rights and responsibilities under the EEO process, affirmative employment programs and laws which the Commission enforces. The EEOC's proactive prevention activities targeted multiple agencies which provided their managers and supervisors the opportunity to understand how to prevent employment discrimination within their workplace. These training sessions were provided by staff members from the Office of Federal Operations and various EEOC district offices throughout the country.

Specifically, staff members conducted 188 training sessions reaching 4,823 federal employees. Federal employees trained included 351 new EEO counselors, 194 new EEO investigators and 486 EEO professionals in affirmative employment programs. Additionally, staff members participated in 41 outreach sessions reaching another 4,404 individuals.

EEOC staff members also responded to more than 7,605 calls regarding the EEO complaint/appeals process, providing the federal sector EEO community and employees with timely information. Additionally, in FY 2005 EEOC staff members provided 109 in-person visits and 30 telephonic technical assistance sessions for affirmative employment programs.

The Commission's training and outreach information can be found at http://www.eeoc.gov/outreach/.

Section F - Responsiveness and Legal Compliance

In order to achieve a model EEO program, agencies must meet the six essential elements discussed in detail in EEO Management Directive 715. The sixth element, "Responsiveness and Legal Compliance," encompasses the timely filing of required reports with the EEOC and the timely compliance with EEOC orders. Appendix III contains the federal agencies' compliance with the requirements to timely submit their Form 462 and MD-715 reports.

1. 95% of EEOC 462 Reports Were Timely

EEOC regulation 29 C.F.R. § 1614.602(a) requires agencies to report to the EEOC information concerning pre-complaint counseling, ADR, and the status, processing, and disposition of complaints under this part at such times and in such manner as the Commission prescribes.

The requirement to file an EEOC Form 462 Report applies to all federal agencies and departments covered by 29 C.F.R. Part 1614, as defined in 29 C.F.R. § 1614.103(b). This includes Executive agencies as defined in 5 U.S.C. 105, military departments as defined in 5 U.S.C. 102, the Government Printing Office, the Postal Rate Commission, the Smithsonian Institution, the Tennessee Valley Authority, the United States Postal Service, and those units of the judicial branch of the federal government having positions in the competitive service. All covered agencies must file Form 462 Reports with the Commission. Form 462 Reports are due on or before October 31st of each year.

Of the 94 agencies (with 100 or more employees) that submitted a Form 462 report in FY 2005, 94.7% of agencies were timely.22


Footnotes

1 All measures under EEOC's regulations and management directives are equally important, and the inclusion of certain measures in this Report does not indicate a higher degree of importance for those measures.

2 We have included additional data provided by the U.S. Postal Service, the Tennessee Valley Authority and the Army and Air Force Exchange Service, which are not reported in the CPDF. It should be noted that, total work force numbers are not provided by certain agencies for national security reasons. In addition, the CPDF data may not include some employees in non-pay status, such as employees on extended military leave. Neither the 1990 nor 2000 EEO Special File controls for citizenship.

3 Source: Office of Personnel Management's The Fact Book-Federal Civilian Workforce Statistics, 1997 edition.

4 The Asian American/Pacific Islander data throughout this report continues to combine data for Asian Americans with "Native Hawaiians and Other Pacific Islanders" and does not include data for "Two or More Races" because separate data was unavailable at the time of publication.

5 These tables report break outs of the employment data for specific components of certain large federal agencies, including the Departments of Agriculture, Commerce, Health and Human Services, Homeland Security, Interior, Justice, Labor, Transportation, Treasury and Veterans Affairs, as well as certain defense agencies, the National Aeronautics and Space Administration and the United States Postal Service.

6 See Women in State Policy Leadership, 1998-2005: An Analysis of Slow and Uneven Progress, Report issued by the Center for Women in Government and Civil Society, State University of New York At Albany, SUNY (Winter 2006).

7 Over 80% of career Senior Executive Service (SES) appointments, which comprise the bulk of the SPL, are selected from feeder grade/applicant pools of GS-15s, who in turn are promoted over 90% of the time from the feeder grade/applicant pools of the GS-14s. An additional small number of GS-14s are promoted directly into the SES. Where an EEO group has a low participation rate in the feeder grade/applicant pool, there is a strong likelihood that the group will be absent or have a low participation rate in the next higher grade level. See, General Accountability Office Report No.GAO-03-34, Senior Executive Service: Agency Efforts Needed to Improve Diversity as the Senior Corps Turns Over (January 2003).

8 Concerns involving both claims 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.

9 There are several reasons an agency may dismiss a complaint, including the complainant's failure to state a claim, timely contact a counselor, or failure to provide necessary information to the agency. See 29 C.F.R. §1614.107(a).

10The 180-day period may be extended by 90 days if both parties agree. See 29 C.F.R. § 1614.108(e). The regulations also extend the 180-day time limit 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).

11 See Jeffery M. Senger, Federal Dispute Resolution: Using ADR with the United States Government, 1-7 (Jossey-Bass/John Wiley & Sons, 2003).

12 Counseling may be provided via EEO Counselor or ADR Intake Officer.

13 The EEOC did not collect the counseling workload prior to FY 2004.

14 For example, time-consuming procedures may appear in lengthy approval of investigative plans, or cumbersome procurement processes.

15 We note that fourteen agencies issued 100.0% of their merit decisions in a timely fashion, but 13 of them issued fewer than 25 total merit decisions.

16 The EEOC has corrected the data for average processing days of hearings for FY 2001.

17 These numbers do not parallel Administrative Judge findings of discrimination because agencies may not take final action in the same fiscal year as the decision was issued, or may settle a complaint where the Administrative Judge has found discrimination.

18 Administrative Judge decisions reported here do not include Petitions for Enforcement.

19 Appeal By Agency occurs when the agency did not fully implement the AJ decision.

20 The number and percentage of resolutions by statute will be greater than the number of cases closed, since one or more statutory basis or bases may be alleged in each appeal.

21 Note: Hearings Benefits should not be added to Appeals Benefits for a grand total, as Hearings Benefits are only preliminary.

22 The Armed Forces Retirement Home, Department of Transportation, Executive Office of the President, Federal Retirement Thrift Investment Board and the Selective Service System filed untimely reports.


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