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Select Task Force Meeting of June 15, 2015 - Workplace Harassment: Examining the Scope of the Problem and Potential Solutions 

Written Testimony of Dexter Brooks, Director, Federal Sector Programs, Office of Federal Operations, EEOC

Workplace Harassment in Federal Sector

Commissioners Feldblum and Lipnic, thank you for the opportunity to discuss the issue of harassment in the federal workplace.

My name is Dexter Brooks, and I have the privilege of serving as the Associate Director of EEOC's Office of Federal Operations (OFO), Federal Sector Programs (FSP).  EEOC has charged OFO with two major responsibilities.  One is adjudicating on an appellate level federal employee EEO complaints.  The second is overseeing Executive Branch agencies' efforts to promote workplace policies that foster an inclusive work culture and proactively prevent employment discrimination.

In FY 2013, EEOC issued its Strategic Enforcement Plan (SEP) and Federal Sector Complement Plan (FCP).  In Priority Six: Preventing Harassment Through Systemic Enforcement and Targeted Outreach, EEOC committed to pursuing systemic investigations and litigation and conducting a targeted outreach campaign to deter harassment in the workplace.

In the FCP, OFO stated its intention to primarily use training and outreach to implement SEP Priority Six .  In this regard, we committed to periodically review federal agency anti-harassment policies to ensure compliance with EEOC enforcement guidance.  OFO also set forth a plan to conduct focused program evaluations of agencies at which harassment allegations are significantly above the government-wide average and also set forth its plan to issue recommendations for improvement, offer targeted outreach, and monitor the progress of those agencies that appear to have difficulty preventing workplace harassment.  In addition OFO currently has a workgroup conducting an evaluation of federal agency efforts to prevent workplace harassment and anticipates issuing a report by the end of fiscal year 2015.

To further assist this Task Force in examining workplace harassment and devise new and effective ways to proactively prevent and address this problem, we share below additional data and information.

Sources of Data

In our oversight capacity, OFO relies on several sources for harassment data: (1) complaint data from EEOC's Form 462; (2) appellate data from EEOC's Integrated Mission System (IMS); (3) survey data; and (4) anecdotal information obtained via review of federal agency anti-harassment policies.

Complaint Data

Through Form 462, EEOC collects data from federal executive branch agencies on both the informal and formal stages of the EEO complaint process.  The data collected includes timeliness indicators for the various stages of the process, issues and bases of the complaints filed, settlements, and findings of discrimination.  This information is submitted to EEOC through the Federal Sector EEO Portal (FedSEP), which warehouses our federal sector data.

Appellate Data

OFO collects and houses federal sector appeals data via IMS.  Appeals are coded upon intake and staff inputs information at each stage of the appellate process. Such data includes, for example, the issues and bases, whether the case implicates any SEP/FCP priorities, and complaint resolution information.

Survey Data

During fiscal years (FY) 2013 and 2014, in an effort to glean more information on strategic priorities, OFO conducted a survey of federal agencies on a variety of topics, including their anti-harassment programs.  In FY 2013, we focused on those 95 federal agencies that employ 90% of the executive branch workforce.  OFO staff entered the survey responses into the FedSEP data warehouse. 

Snapshot of Select Federal Sector Harassment Data

Complaint Data

 

FY 2004

FY 2005

FY 2006

FY 2007

FY 2008

FY 2009

FY 2010

FY 2011

FY 2012

FY 2013

Complaints Filed

#

19,024

18,017

16,723

16,363

16,752

16,947

17,583

16,974

15,837

15,226

Harassment

#

5,957

5,129

5,016

5,496

5,591

6,147

6,501

6,432

6,482

6,641

%

31.31

28.47

29.99

33.59

33.38

36.27

36.97

37.89

40.93

43.62

Non-Sexual

#

5,175

4,550

4,544

4,951

4,999

5,599

5,907

5,863

5,991

6,127

%

27.20

25.25

27.17

30.26

29.84

33.04

33.59

34.54

37.83

40.24

Sexual

#

782

579

472

545

592

548

594

569

491

514

%

4.11

3.21

2.82

3.33

3.53

3.23

3.38

3.35

3.10

3.38

 

Over the last 10 years, the percentage of complaints filed alleging harassment, particularly non-sexual harassment, climbed from 31.31% in FY 2004 to 43.62% in FY 2013.  Although federal employees have filed fewer complaints during that time period, decreasing from 19,024 to 15,226, the number of complaints alleging harassment has grown from 5,957 to 6,641.  Based on this rate of increase, harassment allegations will soon comprise half of all complaints filed.

The data shows that complaints alleging sexual harassment decreased from 4.11% in FY 2004 to 3.38% in FY 2013.  During the last ten years, the number of sexual harassment complaints has remained fairly constant, ranging from 472 to 594.  In contrast, complaints alleging non-sexual harassment have increased dramatically, rising from 27.2% in FY 2004 to 40.24% in FY 2013.  FY 2013 saw nearly a thousand more non-sexual complaints than were filed during FY 2004.  The three bases most often alleged in non-sexual harassment complaints are sex, race and disability.  Each of these bases is seen in about one-third of harassment complaints.

Findings of Discrimination

If a federal employee (current or former) or applicant for federal employment files a complaint of discrimination, the federal agency has 180 days to investigate.  When the investigation is completed, the applicant or employee has two options: (1) request a hearing before an EEOC Administrative Judge; or (2) ask the agency to issue a decision as to whether discrimination occurred (final agency decision).  The following table provides data on agency findings of discrimination.

Final Agency Decisions

 

 

FY 2009

FY 2010

FY 2011

FY 2012

FY 2013

Findings of  Discrimination in Agency Final Actions

176

212

200

197

171

Findings of Discrimination Alleging Harassment

62

35%

63

30%

57

29%

67

34%

64

37%

Findings of Discrimination Alleging Non-Sexual Harassment

53

85%

51

81%

50

88%

54

81%

46

72%

Findings of Discrimination Alleging Sexual Harassment

9

15%

12

19%

7

12%

13

19%

18

28%

 

Appellate Data

Federal employees or applicants may appeal final agency decisions or Administrative Judge decision to the Commission.  The next table provides data on harassment allegations at the appellate stage.

Fiscal Year

Merit Closures

Merit Closures addressing Harassment

Non-Sexual Harassment Merit Closures

Sexual Harassment Merit Closures

2010

#

1,832

543

506

37

%

--

29.64%

93.19%

6.81%

2011

#

1,948

596

561

35

%

--

30.60%

94.13%

5.87%

2012

#

1,727

578

541

37

%

--

33.47%

93.60%

6.40%

2013

#

1,856

566

533

33

%

--

30.50%

94.17%

5.83%

2014

#

1,581

515

484

31

%

--

32.57%

93.98%

6.02%

 

Fiscal Year

Merit Closures addressing Harassment

Findings of Discrimination for Harassment

Non-Sexual Harassment Merit Closures

Findings of Discrimination for Non-Sexual Harassment

Sexual Harassment Merit Closures

Findings of Discrimination for Sexual Harassment

2010

#

543

21

506

17

37

4

%

--

3.87%

--

3.35%

--

10.81%

2011

#

596

21

561

16

35

5

%

--

3.52%

--

2.85%

--

14.28%

2012

#

578

38

541

34

37

4

%

--

6.57%

--

6.28%

--

10.81%

2013

#

566

26

533

21

33

5

%

--

4.59%

--

3.93%

--

15.15%

2014

#

515

30

484

29

31

1

%

--

5.83%

--

5.99%

--

3.22%

 

Fiscal Year

Merit Closures

Merit Closures Finding Discrimination

% of Appeals Finding Discrimination

2010

#

1,832

88

4.80%

2011

#

1,948

87

4.47%

2012

#

1,727

109

6.31%

2013

#

1,856

76

4.09%

2014

#

1,581

86

5.44%

 

Anti-Harassment Policies and Programs

As part of our federal sector oversight role, FSP reviews federal agencies' anti-harassment policies and programs.  It is important to understand that the EEO process and anti-harassment programs do not exist for the same purposes. The EEO process is designed to make individuals whole for discrimination that already has occurred, through damage awards and equitable relief provided by the agency, and to prevent the recurrence of the unlawful discriminatory conduct.  An agency's internal anti-harassment program, on the other hand, is intended to take immediate and appropriate corrective action, including the use of disciplinary actions, to eliminate harassing conduct regardless of whether the conduct violated the law.  Ultimately, the goal of the anti-harassment program is to prevent harassing conduct before it can become "severe or pervasive."

In our upcoming report, we will explore how the federal government is utilizing anti-harassment programs.  Through this effort, we hope to share leading practices and areas for improvement.

Conclusion

Thank you for the opportunity to appear here today.  OFO looks forward to continuing to work vigilantly with this Task Force and the larger federal sector community toward accomplishing our goals:  A model federal workforce that fully reflects the contributions of all of this nation's people, safeguards an unfettered freedom to compete and provides steadfast protection of civil rights.  I welcome any questions from the Task Force.