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Office of Federal Operations and Office of Field Programs Federal Sector Complement Plan to the Strategic Enforcement Plan

I. Introduction

Pursuant to the Commission's Strategic Enforcement Plan (SEP), the Office of Federal Operations (OFO) and the Office of Field Programs (OFP) submit to the Office of the Chair this Federal Complement Plan (FCP, or Plan). As described in detail below, this Plan is based upon the recommendations of a staff work group and: (1) describes how the Federal Sector will implement the SEP priorities; (2) identifies complementary Federal Sector priorities and strategies for addressing them; and (3) recommends strategies to improve communication, oversight, and consistency across the Federal Sector.

The Federal government is our nation's largest employer. EEOC provides leadership and guidance to Federal agencies on all aspects of the Federal government's equal employment opportunity program and has established the processes for addressing workplace discrimination in the Federal Sector. The processes employed by the Commission in addressing discrimination in the private sector and Federal Sector differ significantly in that the Commission's private sector enforcement role is primarily investigatory and litigation, while Federal Sector enforcement is primarily oversight and adjudicatory. Nevertheless, the SEP priorities are applicable to the Federal Sector's antidiscrimination efforts. Given the nature of Federal Sector oversight and enforcement, the process for arriving at this Plan involved other Federal agencies, outside advocacy groups and EEOC employees. That process is summarized below.

II. Background

In order to develop the FCP, OFO and OFP formed the Federal Sector Strategic Planning Group, which has three sub groups: (1) Case Management; (2) Priorities; and (3) Technology Infrastructure. These sub groups consist of field managers, supervisory administrative judges (AJs), headquarters staff from OFP's hearings program, and staff from OFO's Appellate Review Programs (ARP), Federal Sector Programs (FSP) and Compliance and Control Division (CCD). A field office AJ represents the union. This FCP is primarily the work of the Priorities Sub Group (PSG).

PSG began its task by reviewing the following data (from the last ten years) to determine Federal Sector trends: (1) Form 462 EEO complaint data; (2) IMS hearings and appeals data; and (3) appellate findings of discrimination, by agency, issue and basis.

It next formulated a questionnaire. After coordinating with EEOC's Office of Human Resources (OHR) and the union, PSG sent the questionnaire to the following EEOC employees: (1) AJs and supervisory AJs; (2) ARP staff and managers; (3) FSP staff and managers; and (4) OFP and OFO headquarters AJ coordinators.

PSG solicited input from external stakeholders as well. OFO's January 2013 quarterly EEO Directors meeting included a presentation on EEOC's Strategic Plan and SEP. Following that presentation, OFO moderated an interactive, brainstorming session to get agency EEO Directors' suggestions for Federal Sector priorities to include in the FCP. PSG also sought input from outside the Federal government by issuing a press release inviting public comment and setting up an email box to receive such comments. Approximately fifty (50) commenters - including law firms, advocacy groups, and individuals - availed themselves of this opportunity to comment. PSG shared all external comments with the Commissioners.

PSG adhered to the following principles: (1) all comments and opinions are worthy of consideration; (2) PSG would reach decision by consensus; and (3) the sole fact that an issue or basis arises frequently will not automatically require it to be identified as a Federal Sector priority. The following items are not addressed in this report because they will be addressed elsewhere: (1) existing EEOC Federal Sector and district office goals and performance standards; (2) budget issues or the allocation of resources; however, PSG recognizes the need to make the best use of existing Commission resources; and (3) future Federal Sector Organization Plan (FSOP) recommendations regarding the placement and structure of the Federal Sector hearings program. PSG will need to follow up this Plan with an evaluation strategy, which should be revisited on at least an annual basis.

III. Implementation of SEP Priorities in the Federal Sector

OFO and OFP will use many of the same strategies and mechanisms to implement both the SEP priorities and the Federal Sector priorities. Moreover, PSG envisions the newly created Case Management Plan, required by Performance Measure 3 of the Strategic Plan, and the integrated data system for the Federal Sector, required by Performance Measure 5 of the Strategic Plan, as the major vehicles through which OFO and OFP will implement and coordinate all priorities and identify potentially discriminatory policies at Federal agencies. Both are under development and discussed below in section IV.

The Federal Sector has an array of available tools to use in implementing the SEP priorities. These include: (1) ordering discovery and supplemental investigations; (2) resolving cases through alternate dispute resolution; (3) conducting hearings and issuing decisions; (4) adjudicating appeals; (5) overseeing Federal agencies' affirmative employment programs; (6) providing technical advice and assistance to agencies and individuals; (7) developing and delivering training programs; (8) analyzing agencies' annual workforce and accomplishment reports and providing feedback to agencies; (9) conducting special investigations; (10) compiling complaint processing statistics; (11) analyzing data on employment trends; (12) conducting agency EEO program evaluations; (13) monitoring and ensuring agency compliance with EEOC orders; (14) publishing an annual report to the President and Congress; (15) researching and publishing government wide reports on issues of interest to the Federal EEO community; (16) speaking at stakeholder and other agency conferences; (17) publishing a quarterly Federal Digest of EEO decisions; and (18) participating in EEOC task forces and workgroups.

Set forth below is a description of how the Federal Sector will implement each SEP priority. Following each description is a list of the complementary Federal Sector priorities PSG identified and strategies for addressing them.

A. Eliminating barriers in recruitment and hiring

The Federal Sector's oversight responsibility to review, approve and evaluate Federal agency compliance with EEO laws, coupled with its access to Federal workforce data, well positions it to assist agencies to eliminate barriers in recruitment and hiring. FSP will continue to review agency MD-715 reports (with workforce data and barrier analysis) and Form 462 complaints data for each Federal agency and subcomponent MD-715 covers and will focus its barrier analysis technical assistance and feedback on recruiting and hiring. One area that will receive attention is the Senior Executive Service and its feeder groups. Given the impact of significant retirements in the next decade, this is particularly appropriate. This will build on the work that OFO has done in its broader reviews of challenges confronting Asian Americans and Pacific Islanders, African Americans, Hispanics and Women.

The Commission's newly revised complaint processing regulations provide that an AJ decision on the merits of a class complaint is a final decision, rather than a recommended decision. If an agency decides not to fully implement AJ decision, it must appeal that portion which with it disagrees. 29 CFR 1614.204(i) & (j). This makes the class action procedure in the hearing and appellate process a more effective tool to address systemic practices that impede non-discriminatory recruitment and hiring.

Federal Sector Priorities

1. Improper pre- and post-offer assessment screening, testing, and qualification standards

This priority will include medical examinations, hiring/screening tests, and non-objective interview processes that may improperly exclude individuals. In addition to identifying and eliminating such discriminatory practices and policies, the Federal Sector will prioritize cases raising related issues, including the meaning of the "business necessity" defense, the relationship between "business necessity" and "direct threat," and the appropriate allocation of burdens in qualification standards cases.

2. Credit checks, suitability determinations, and criminal records

Most newly hired Federal employees are subject to a suitability determination to determine whether s/he demonstrates the appropriate character to hold a Federal job. OPM establishes suitability rules for employees and also is responsible for establishing the standards covering contract employees. OPM also performs approximately 90% of the background investigations that allow agencies to determine whether applicants for Federal jobs meet suitability criteria, and whether employees should be granted security clearances.

The Federal Sector will employ Commission guidance more vigorously in the areas where screening practices such as credit checks, suitability determinations, and criminal records automatically disqualify applicants and employees on a proscribed basis and it will develop a Commission body of decisions to guide agencies to the non-discriminatory use of selection devices.

The issues identified in section III. A (1) and (2) can be identified during hearings, on appeal and anecdotally (during program evaluations). In addition to giving priority consideration1, through the coordination mechanism established in the Case Management Plan, AJs and ARP staff could identify issues and FSP quickly could respond by conducting a focused (i.e. only on that issue) program evaluation, and follow up with technical assistance.

3. Improve hiring persons with disabilities

FSP will work to educate agency heads and employees (not only EEO Directors and staff) on using Schedule A. FSP will finalize the revised applicant data form, which was published in the Federal Register on February 15th, 2013. If approved, the revision will enable agencies to collect information on disability, which will allow agencies and EEOC to track progress toward meeting the recruitment and hiring strategies developed pursuant to Executive Order 13548.

B. Protecting, immigrant, migrant and other vulnerable workers

PSG has identified the following groups as vulnerable populations in the Federal Sector:

1. Employees working in the intelligence community

Because EEOC is effectively precluded from reviewing the merits of an agency's security clearance decision, a suspension or denial of such a clearance may operate to mask discrimination in an EEO claim brought by an applicant or employee. For the employees, the revocation of a clearance could effectively end or severely curtail their federal careers.

Using anticipated revised guidance from OLC, EEOC AJs and ARP attorneys will determine whether an agency was motivated by discriminatory animus in denying or suspending a security clearance decision.

2. Contract employees

In the Federal Sector, the status of a contract employee is determined under either the "employee" test set out in Commission precedent or the Commission's joint employer guidance. Considerable confusion exists as to where such employees should seek redress. AJs and ARP staff will alert FSP if a pattern or practice of unlawful practices in an agency emerges, and FSP will in turn provide technical assistance and/or initiate a focused program evaluation on that issue.

3. Persons with targeted disabilities

Persons are hired under Schedule A, often as temporary employees, with a two year probationary period. Many such employees languish in that status for years and are not timely converted - or never converted - to permanent status. FSP will, as part of routine MD-715 technical assistance, remind agencies to review the status of their Schedule A employees to ensure that they are made permanent after a successful probationary period, which will make them available for promotions and bestow upon them other benefits guaranteed to full-time permanent Federal employees.

4. Interns

Federal government interns are often young students who work short durations. This could be the first work experience for the individual, who may be unaware of his/her rights. Often, students and volunteers are seeking employment and want to leave a positive impression on their supervisors/mentors and may be leery of filing complaints. Over the last few years, a few egregious sexual assault and harassment cases involving interns have occurred at federal agencies.

Using the Commission's recently reinvigorated Youth at Work materials and in concert with OPM, OFO and OFP will work to ensure that interns and volunteers are provided information on their workplace rights.

C. Addressing emerging and developing issues

SEP and FCP priorities will be properly identified and tracked. As issues are identified using the array of tools described above in Section III, OFO and FSP will update and design training materials to be presented at quarterly EEO Director meetings, at EXCEL and other stakeholder conferences and during other outreach events, such as brown bag seminars. OFO will highlight significant cases on emerging and developing issues in its quarterly Federal Sector Digest.

Federal Sector Priorities

1. Title VII protection for lesbian, gay, bisexual and transgender (LGBT) persons

Through the coordination mechanism established in the Case Management Plan, Hearings Units and ARP will identify (1) cases where an agency has dismissed an LGBT case from the 1614 process; and (2) identify appropriate Federal Sector appellate decisions through which the Commission may clarify its position on LGBT Title VII coverage.

OFO/OFP will continue efforts to educate Federal Sector stakeholders and EEOC staff about existing protections for LGBT individuals under current Federal law and Federal Sector decisions on gender identity and sex stereotyping.

2. Failure to keep medical and other personal information private in accordance with EEOC regulations

Through the coordination mechanism established in the case management plan, Hearings Units and ARP will flag significant disability cases with possible recordkeeping or confidentiality violations in addition to the underlying claim. AJs and ARP staff will alert FSP to any emerging patterns, either government wide or in a particular agency or industry. FSP will then determine whether outreach and/or a program evaluation is warranted.

3. Failure to accommodate disabilities

Through decisions, outreach and training, OFO/OFP will address reasonable accommodation issues that are likely to arise more often post-ADAAA and that continue to cause confusion among stakeholders, such as leave as a reasonable accommodation; the relationship between reasonable accommodation and misconduct or symptoms related to a disability; reasonable accommodation for the hiring process; undue hardship; and reasonable accommodation in the context of the Pregnancy Discrimination Act.

FSP will use data obtained from AJs and ARP staff to identify agencies that may have systemic reasonable accommodation issues and work with the agencies to obtain compliance with the ADA and alert AJs and ARP attorneys to examine appropriate remedies in cases.

AJ and appellate decisions will clearly set forth the obligations of the parties in reasonable accommodation controversies.

D. Enforcing equal pay laws

The Federal Sector primarily will use training and outreach to implement this SEP priority. The Federal Sector updated its training and outreach materials following enactment of the Lily Ledbetter Fair Pay Act and has reinvigorated efforts and focus on gender pay disparity by participating in the National Equal Pay Task Force. In anticipation of stakeholder training requests stemming from the upcoming Equal Pay Act's 50th anniversary, the Federal Sector has prepared a number of new outreach materials, including Equal Pay Act slides, a timeline and case summaries. In accordance with the FCP's priorities, Hearings Units and ARP staff will accord significant equal pay cases priority consideration consistent with the coordination mechanism established in the Case Management Plan.

Federal Sector Priority

1. Alternate pay systems that allow for subjective pay determinations

Over the last ten years, Federal agencies have significantly increased the use of alternate pay systems that provide more flexibility than the general schedule system. These systems usually contain subjective pay determinations and the likelihood of significant pay disparities on a proscribed basis.

Through the coordination mechanism established in the Case Management Plan, Hearings Units and ARP attorneys will identify significant cases involving gender pay differences from an alternate pay system to FSP. FSP will study alternate pay systems to determine if there are gender pay disparities either government wide or specific to an agency.

E. Preserving access to the legal system

The Federal Sector will continue its robust training and outreach efforts in the area of retaliation and efforts to discourage use of the EEO process. Through the coordination mechanism established in the Case Management Plan, Hearings Units and ARP (in addition to ordering stringent traditional remedies) will identify cases that demonstrate egregious retaliation or a culture tolerant of retaliation, FSP may then determine whether to initiate a program evaluation and/or provide targeted outreach to the offending agency.

Federal Sector Priorities

1. Improving Federal employee's faith in the integrity of agency EEO programs

When Federal agencies repeatedly ignore regulatory requirements to provide files, conduct timely investigations, fail to meet hearing deadlines, etc. and are not held accountable, it erodes employee faith in the EEO program and discourages employees and applicants from accessing the system.

Using appeal records and information provided during hearings, through the coordination mechanism established in the Case Management Plan, Hearings Units and ARP will identify those agencies that regularly ignore regulatory processing requirements and/or fail to comply with MDs110 and 715 and will consider imposing sanctions where they deem that the agency's behavior might have an adverse effect on the integrity of the EEO program. Through the coordination mechanism established in the Case Management Plan, Hearings Units and ARP will identify "repeat offenders". Based upon this information and based upon its review of agencies' MD-715 compliance, FSP will consider program evaluations of such agencies and/or utilize 29 CFR § 1614.102(e) (new regulation permitting EEOC to issue notices to agencies when non-compliance is found).

2. Correct improper agency dismissals

OFO will analyze Federal Sector remands to identify which issues agencies most frequently dismiss on incorrect grounds, thereby denying Federal employees access to the EEO process. Based on the data gathered, OFO/OFP will develop training or outreach efforts aimed at EEO Directors and staff to preclude ongoing errors. FSP will provide technical assistance and/or recommend training to the agencies that most frequently improperly dismiss complaints

3. Ensure Federal employees know their rights

In addition to the ongoing training, outreach, technical assistance and agency oversight FSP conducts, during Federal Sector program evaluation on-site visits, FSP will assess (through interviews, observing whether EEO posters are visible, etc.) whether employees are provided with information about how to initiate the EEO discrimination complaint process at their agency, and if so, whether that information is easily accessible and understandable. FSP also will complete and post on EEOC's website the You Tube videos described below in section IV.

4. Developing law on retaliation

Federal supervisors and managers appear to be unaware of how the law on retaliation has developed in the last several years, especially with regard to the impact of subsequent actions on an individual's exercise of EEO rights.

OFO/OFP will review all training modules on retaliation and ensure that they are up to date. OFO and OFP will instruct all Federal Sector trainers: (1) to emphasize to their audiences that each statute EEOC enforces prohibits retaliation; and (2) to include in each training module/session a retaliation update and, where appropriate, a discussion of the No FEAR Act.

5. Provide guidance on agency counsel intrusion

Ensuring separation between the agency's EEO complaint program and defensive function enhances the credibility of the EEO office and the integrity of the EEO complaints process. Where employees believe that EEO investigations are controlled by agency counsel, they will not use the system and turn to other avenues (e.g., administrative grievance) for relief. Issuing additional guidance on this issue would assist agency EEO offices to assert their independence from agency counsel and underscore to Federal employees and applicants that agency EEO investigations are neutral and unbiased. A revised MD-110 with detailed guidance on the issue of agency counsel intrusion is in development and once final will be accompanied by outreach and stakeholder training.

F. Preventing harassment through systemic enforcement and targeted outreach

The Federal Sector will primarily use training and outreach to implement this SEP priority. In particular, FSP periodically will review agency anti-harassment policies to ensure that they comport with EEOC enforcement guidance.

The Federal Sector will focus on agencies where harassment allegations are significantly above the government wide average. After analyzing data, FSP will conduct a focused evaluation, issue recommendations, offer targeted outreach and monitor the progress of those agencies that appear to have difficulty preventing workplace harassment.

IV. Strategies to Improve Communication, Oversight and Consistency Across the Federal Sector

The Federal Sector has developed several strategies to improve communication, oversight and consistency. Each strategy recognizes that it is essential to maximize the sharing of information among various components of the Federal Sector process to effectively use all resources. The strategies described below maximize resources to eliminate discrimination in the Federal government by linking all of the EEOC's responsibilities.

The cornerstone of these efforts is the draft Case Management Plan, which is, in part, designed to ensure that the Federal Sector properly identifies and tracks SEP and FCP priorities from the receipt of the hearings request through issuance of the appellate decision.

Moreover, the statistical and other information gathered during the adjudicatory processes will be available for FSP review and use. That, in conjunction with complaint data, workforce data, MD-715 reports and information gained during technical assistance and outreach, will create a more complete picture of how agencies are progressing in the development of model EEO programs and where issues of systemic concern may exist. As envisioned by the data integration requirements of Strategic Plan Performance Measure 5, the end result will be to greatly enhance EEOC's ability to focus on and eliminate discriminatory practices and policies in Federal agencies. The Federal Sector also will improve communication, oversight and consistency via use of social media. In partnership with the Social Security Administration, FSP is in the process of developing five informational videos to place on EEOC's website. The topics covered are: the Federal EEO process; harassment (two informational videos; one for employees and one for employers); disability (focused on reasonable accommodation); and Schedule A hiring.

The plan for improving Federal Sector communication, oversight and consistency must include Federal government agencies. Accordingly, OFO and OIT have partnered to develop the Federal Sector EEO Portal (FedSEP), which currently allows EEOC to post important messages to agencies and also captures contact information for EEO staff in every agency. In the future, OFO plans to initiate a discussion forum in FedSEP through which OFO and agencies can share best practices and discuss important issues. In FY 2013, OFO will collect MD-715 workforce data and Form 462 complaint data reports from all covered Federal agencies via FedSEP. OFO also plans to use FedSEP to enable agencies to upload their complaint files for cases at the hearing and appellate stages.

OFP (Hearings) currently enables agencies to upload their complaint files to EEOC's Data Management System (DMS) through its web portal (EFX). It is anticipated that in the near future hearings cases will be processed electronically. With all AJs using the same documents and system of communication, the future version of EFX will virtually ensure unprecedented uniformity and quality in Federal Sector hearings.

1 The Case Management Subgroup will likely propose the electronic tracking of Priority cases. As appropriate, significant Priority cases will be the subject of periodic conferences between staff assigned by the OFO and OFP Directors. Such coordination must at all times maintain the integrity and objectivity of the hearing and appellate functions to ensure that AJs and appellate attorneys exercise informed judgment in a particular case free of any inappropriate control. Coordination of priority cases will also occur, as appropriate, with FSP to ensure that issues of systemic concern are addressed.

Cases designated as "Priority" on appeal will be coordinated between hearings and appeals via regular, periodic conferences and through other appropriate means, for example, by staff assigned by the OFO and OFP Directors. . Such coordination must at all times maintain the integrity and objectivity of the hearing and appellate functions to ensure that AJs and appellate attorneys exercise informed judgment in a particular case free of any inappropriate control.. Coordination of priority cases will also occur, as appropriate, with FSP to ensure that issues of systemic concern are addressed.