Office of Federal Operations/Federal Sector Programs/Special Operations Division
Complaints of employment discrimination by federal employees and applicants must be filed and processed through procedures established in 29 C.F.R. Part 1614. The Commission has made several efforts to improve this process, and yet EEOC is aware of the need for some agencies to reduce processing times while retaining the due process rights of complainants and ensuring the integrity of outcomes. Agencies, stakeholders, and the Government Accountability Office (GAO) all have suggested, as an alternative to large-scale reform, that pilot projects be conducted to test the effectiveness of alternatives to the current Part 1614 process. The EEOC created a process to approve agency pilot projects in its 2012 amendments to Part 1614 and 2015 edits to Management Directive 110. This toolkit provides helpful information for agencies on how to apply for a variance to conduct a pilot project consistent with 29 C.F.R. § 1614.102(f) and MD-110 Chapter 1 Section X.
Following a 2002 Commission meeting on federal sector reform - through which internal and external stakeholders including the National Employment Lawyers Association and EEOC's union suggested ways to change the EEO process - the agency convened an internal workgroup to study potential reforms. The workgroup reached no consensus on large scale reform, but instead recommended, among other changes, that EEOC allow agencies to perform pilot projects to test potential alternatives.
To act on the workgroup's recommendation, EEOC proposed to allow pilot projects with Commission approval in a Notice of Proposed Rulemaking (NPRM) that was approved by the Commissioners, circulated to federal agency EEO Directors for comment pursuant to Executive Order 12067, and ultimately published for public comment in the Federal Register on December 21, 2009. The GAO also studied the issue and recommended that EEOC allow pilot projects in an August 2009 report, titled, "Pilot Projects Could Help Test Solutions to Long-Standing Concerns with the EEO Complaint Process."  The GAO report stressed the importance of a "sound evaluation plan" to determine whether the pilot could become a successful alternative to the current regulatory process. According to GAO, such a plan must include clear objectives, measures linked to those objectives, criteria for determining performance, a method for isolating the effects of the pilot programs, a data analysis plan, and a data collection/storage/entry plan to ensure that the results are reliable.
After reviewing GAO's recommendation and receiving comments from federal agencies, individuals, civil rights groups, members of the bar, unions and other groups, the Commission issued a Final Rule, on July 25, 2012, that included a provision for agencies to seek a variance from the administrative process to perform pilot projects, codified at 29 C.F.R. § 1614.102(f). In explaining the Commission's rationale for pilot projects, the Final Rule preamble noted that all agencies and several other commenters supported the change, and that pilot projects could provide "helpful data for future recommendations regarding changes to the federal sector EEO complaint process."
EEOC provided further guidance for agencies on how to request a variance and create a pilot project in a revised Management Directive 110 (MD-110). Much like the regulations, MD-110 was approved by the Commission, coordinated with other federal agencies, and published for a sixty-day public input period before the final version was approved on August 5, 2015. Since the publication of MD-110, agencies have requested that EEOC provide even more information about variances and pilot projects consistent with 29 C.F.R. § 1614.102(f) and MD-110. In response, EEOC created this toolkit as an EEOC Resource Document to help agencies with their variance applications and pilot project proposals; it creates no new policies separate from those publicly vetted in 29 C.F.R. 1614.102(f) or MD-110. The toolkit provides technical details about how an agency may apply for a variance in part III, and in part IV, it provides answers to Frequently Asked Questions.
Email requests for a variance to perform a Pilot Project to firstname.lastname@example.org, and include "Pilot Request" in the subject line. Requests must be received between March 31 and April 15. Requests received after April 15 will not be considered. Requests must include all applicable information listed below. To provide agencies with more time in the first year of these instructions, applications in FY 2016 are due April 29.
A1. Agencies should submit requests, including all applicable documents, electronically to email@example.com . Ensure "Pilot Request" is in the subject line of the email.
A4. No. The written request must identify the specific section(s) of 29 C.F.R. Part 1614 from which the agency wishes to deviate and provide a detailed explanation of what the agency will do instead. See Part III of the Tool Kit for all the required information.
A5. Requests should propose a start and end date for the pilot project. The EEOC has discretion in how long to grant a variance request; it will not initially grant any requests longer than 24 months, but it may extend the pilot for an additional year upon request if good cause is shown. The EEOC's goal in determining the duration of a pilot project is to allow a reasonable amount of time for agencies to complete the processing of complaints filed under the pilot.
A8. See Part III of the Tool Kit, above, for the required information. Generally speaking, the agency should clearly identify how the pilot project will differ from the regulatory process, pinpoint the effect the agency believes it will have on complaint processing, define the duration and stages in the pilot project, and explain how the project will progress from start to finish. The agency also should provide POCs for the pilot, evaluation, and data collection; set forth clear objectives for the pilot project; and explain how the objectives will be measured. A pilot project request additionally should contain a detailed explanation of the method that will be used to evaluate the pilot project's success on a quarterly basis and at its conclusion, including the criteria that will be used to determine the pilot project's overall success, a data analysis plan, and ways to obtain and measure customer feedback.
A9. See Part III.D of the Tool Kit above. The agency must certify that the goals of the pilot project are consistent with the Commission's statutory mandate to prevent, remediate, and eradicate employment discrimination. To that extent, the agency must ensure that employees and applicants participating in the pilot are not disadvantaged relative to individuals in the traditional EEO complaint process, and that their rights under the EEO laws are protected. Additionally, the agency will ensure fairness and neutrality of the EEO process and submit information demonstrating the agency's current status of operating within regulatory guidelines for complaint processing. The agency also should outline what training it will provide to EEO staff, how it will provide notice to employees and applicants about the pilot, and ensure that all stakeholders understand the pilot is voluntary.
A10. Yes. The agency must provide specific information regarding which components, facilities and/or positions will be eligible to participate in the pilot projects, as well as the reasons for its choice(s).
Q11. Are there any reporting requirements during the pilot project?
A11. Agencies must submit quarterly reports to the Office of Federal Operations with information on the total complainants opting into the pilot project, the average age of complaints in the pilot project, and updated pilot project evaluation data. See EEOC Management Directive 110, Chapter 1, Section X.A.10 (August 5, 2015). Specific criteria for reporting will be based on the pilot project itself and provided by EEOC with any pilot project approval.
A12. The agency should identify well-defined, clear, and measurable objectives and their connection to EEO program objectives. The agency should also explain how it will isolate the effects of the pilot program and control for factors outside of the program such as the types of complaints filed and individual complainants, as well as how data will be collected for evaluation purposes. The agency also should establish detailed time frames and a schedule for evaluating performance.
A13. A data analysis plan should spell out what data will be collected, including baseline data before the pilot project begins as well as data from the pilot itself. The plan should explain how the data will be collected and analyzed, and identify who will be responsible for analyzing the data and who besides EEOC officials will have access to the analysis. It should also describe how the data will be entered and stored, as well as the safeguards that will be in place to ensure the data is reliable, error free, and protects personally identifiable information (PII).
A14. Agencies administering pilot projects must submit a final evaluation report at the conclusion of the pilot project. The report must provide a detailed evaluation of the pilot project and be submitted to the Commission within 90 calendar days of the pilot project's conclusion.
A15. Yes. If the sub-component has total responsibility for the part of the 1614 process it is requesting a variance from and the parent agency does not object, then a sub-component may request a pilot project separate from the parent agency.
A16. The agency should use reasonable means to ensure that eligible employees and applicants are aware of the pilot project. This can take many forms, but must inform employees that the pilot is voluntary.
A17. The Office of Federal Operations will review the Agency's request, including documentation submitted in support thereof, and prepare recommendations for the Commission. The Commission ultimately must vote to approve the variance and pilot project before the agency may begin the pilot project.
A18. The agency should develop an effective way to obtain feedback from those who participate in the pilot project as well as those going through the 1614 process. For example, the agency might use an electronic survey, or exit interviews.
A.19. Yes. The agency should ensure that any potential conflicts with the collective bargaining agreement are resolved prior to submitting its pilot project request to the Commission.
Q.20. Will EEOC respond to agency questions or provide additional assistance to agencies drafting pilot project requests?
A.20. Yes. The agency can submit questions to the Commission by email at firstname.lastname@example.org, using "Pilot Assistance" in the subject line of the email. The agency should include point of contact information, including the appropriate agency employee(s), their title(s) or position(s), their telephone number(s) and email address(es). The Commission will respond by email, phone or schedule an in-person meeting to assist the agency in resolving the question.
 U.S. Gov't Accountability Office, GAO-09-712, Equal Employment Opportunity: Pilot Projects Could help Test Solutions to Long-standing Concerns with the EEO Complaint Process, at 36 (2009).
 Id., at 36.
 Id., at 36-37.
 Federal Sector Equal Employment Opportunity, 77 Fed. Reg. 43,498, 43,500 (July 25, 2012).