Equal Employment Opportunity:

Pilot Projects Could Help Test Solutions to Long-standing Concerns with the EEO Complaint Process

GAO-09-712: Published: Aug 12, 2009. Publicly Released: Aug 12, 2009.

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Delays in processing federal equal employment opportunity (EEO) complaints, apparent or perceived lack of fairness and impartiality in complaint processing, and fear of retaliation in the workplace have been long-standing concerns of the Equal Employment Opportunity Commission (EEOC), other federal agencies, and Congress. Based on a Notification and Federal Employee Antidiscrimination and Retaliation Act mandate, GAO analyzed (1) factors that EEO practitioners have identified as impeding the fair, prompt, and impartial processing of federal EEO complaints and (2) actions that EEO practitioners and other stakeholders think could be taken to help address those factors. GAO also identified actions that EEOC is taking to improve the federal complaint process. GAO surveyed 65 EEO practitioners representing a wide cross section of professionals knowledgeable about the federal EEO complaint process, who were selected from 16 federal agencies that accounted for about 88 percent of complaints filed in fiscal year 2005, EEOC, and private sector attorneys' offices. GAO did not assess the validity of practitioners' views or evaluate the effectiveness of initiatives.

GAO analyzed and grouped into eight, the factors that EEO practitioners identified as those they believed impeded the fair, prompt, and impartial processing of federal EEO complaints: (1) lack of accountability by some agency officials and EEOC practitioners in carrying out their responsibilities; (2) lack of sufficient resources by some EEO programs and EEOC to fulfill their responsibilities; (3) lack of independence by some agency officials, including undue interference by some agency legal counsel and human resources officials in EEO matters; (4) insufficient knowledge and skills by some agency officials and EEO practitioners; (5) lack of authority by some EEO officials to dismiss cases that have no merit and lack of subpoena power by EEOC administrative judges (AJ); (6) lack of clarity in regulation and some guidance and consistent decisions from EEOC; (7) lack of effective communication by some EEO practitioners of relevant oral and written information to participants and that alternative dispute resolution is available; and (8) lack of a firm commitment by some agency management and EEO officials to the EEO process. The practitioners' views do not represent the official views of the selected agencies and should not be generalized to conclude that all federal agencies and EEO practitioners are deficient in all factors identified. Also, a few stakeholders GAO contacted stated that without the perception that the complaint process is fair, people may choose to not participate in it; GAO believes this concern is important and has been accounted for within the discussion of several of the factors. EEO practitioners surveyed and stakeholders suggested potential solutions to address the factors practitioners identified and provided information on relevant changes their agencies had made to the process. For example, to strengthen accountability, practitioners reported establishing measures for timeliness and quality for agency EEO professionals and those contracted to perform EEO complaint functions. To strengthen EEO staff's independence, several practitioners and stakeholders offered that agencies should adhere more clearly to existing EEOC requirements on delineating the roles of the agency general counsels in the EEO process. Stakeholders offered potential advantages and disadvantages to allowing complainants to file directly with EEOC as a means to avoid real or perceived conflicts of allowing an agency to investigate a complaint against itself. Several practitioners and EEOC officials stated that providing subpoena authority to AJs could help improve the efficiency of the EEO complaint process by compelling witnesses to testify. To help agencies achieve model EEO programs, EEOC has begun to measure agencies' progress in such areas as the timeliness of investigations. In June 2008, EEOC announced a proposal that includes provisions that may address some of the factors that practitioners identified. The proposal would require that agency EEO programs comply with EEOC regulations and other guidance and that EEOC review those programs for compliance. The proposal also would permit agencies to conduct pilot projects to test new ways to process EEO complaints that are not presently included in existing regulations.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: If pilot projects are approved by EEOC, the Acting Chairman of EEOC should direct pilot project officials to develop for each pilot project an evaluation plan that includes key features to improve the likelihood that pilot project evaluations will yield sound results, such as (1) well-defined, clear, and measurable objectives; measures that are directly linked to the program objectives; criteria for determining pilot program performance; (2) a way to isolate the effects of the pilot programs; (3) a data analysis plan for the evaluation design; and (4) a detailed plan to ensure that data collection, entry, and storage are reliable and error free.

    Agency Affected: Equal Employment Opportunity Commission

    Status: Open

    Comments: According to EEOC officials, the agency is in the process of proposing changes in regulations that would allow use of the pilot programs. The EEOC must then send the guidance to OMB for its approval. Depending on what happens during that process, the guidance could be returned to EEOC for additional consideration. However, once approved, the EEOC can then implement the pilot programs and address our recommendations. These recommendations were to include an evaluation plan in the programs. As part of the evaluation plan, we also recommended that the EEOC adopt an appropriate methodology that could assess the success of the programs. Therefore, we are keeping the recommendation open. 12/2011: In providing comments on this report, EEOC concurred with this recommendation. While the agency has not implemented the recommendation, it is proposing changes to the Federal sector regulatory process that would allow the use of pilot projects subject to Commission approval. EEOC has sent a notice of proposed rulemaking (NPRM) to 170 agencies to solicit their comments on pilot programs to test alternative approaches to administering the EEOC complaint process. EEOC has received and is reviewing comments from the 33 agencies which submitted comments on the proposed draft. According to an EEOC official, EEOC currently is analyzing the comments on the NPRM and drafting the Final Rule. Once approved by EEOC, we will request and review EEOC's plans to evaluation the pilot projects. 12/23/2011: According to EEOC, pilot projects in the Federal sector were included in the Notice of Proposed Rule Making (NPRM) that would modify EEOC regulations governing the Federal Sector process. That regulation is currently under consideration by the Commission. At the time of our contact, EEOC did not have a timeframe for a decision. Further, after EEOC's decision, it would then go to OMB for review and approval before the final rule is published.

    Recommendation: If pilot projects are approved by EEOC, the Acting Chairman of EEOC should direct commission staff to review and approve pilot projects' evaluation plans to increase the likelihood that evaluations will yield methodologically sound results, thereby supporting effective program and policy decisions.

    Agency Affected: Equal Employment Opportunity Commission

    Status: Open

    Comments: According to EEOC officials, the agency is in the process of proposing changes in regulations that would allow use of the pilot programs. The EEOC must then send the guidance to OMB for its approval. Depending on what happens during that process, the guidance could be returned to EEOC for additional consideration. However, once approved, the EEOC can then implement the pilot programs and address our recommendations. These recommendations were to include an evaluation plan into the programs. As part of the evaluation plan, we also recommended that the EEOC adopt an appropriate methodology that could assess the success of the programs. Therefore, we are keeping the recommendation open. 12/2011: In providing comments on this report, EEOC concurred with this recommendation. While the agency has not implemented the recommendation, it is proposing changes to the Federal sector regulatory process that would allow the use of pilot projects subject to Commission approval. EEOC has sent a notice of proposed rulemaking (NPRM) to 170 agencies to their solicit comments on pilot programs to test alternative approaches to administering the EEOC complaint process. EEOC has received and is reviewing comments from the 33 agencies who submitted comments on the proposed draft. According to an EEOC official, EEOC currently is analyzing the comments on the NPRM and drafting the Final Rule. Once approved by EEOC, we will request and review information on EEOC's efforts to review and approve evaluation plans for the pilot projects. 12/23/2011: According to EEOC, pilot projects in the Federal sector were included in the Notice of Proposed Rule Making (NPRM) that would modify EEOC regulations governing the Federal Sector process. That regulation is currently under consideration by the Commission. At the time of our contact, EEOC did not have a timeframe for a decision. Further, after EEOC's decision, it would then go to OMB for review and approval before the final rule is published.

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