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.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: According to EEOC officials, the agency first proposed changes to its regulations to allow for pilot projects in the Federal Register in late 2006. The final rule, which provided a mechanism for agencies to request a variance from regulations to conduct pilot projects, was issued in July 2012. EEOC released its Management Directive in August 2015, containing the revised regulations and clarifications, including more explicit information on time frames, as well as a list of elements to be included in pilot project requests. In the summer of 2016, EEOC's Office of Federal Operations (OFO) released its Standard Operating Procedures (SOP) with a checklist the OFO uses to evaluate applications. Part of the criteria for acceptance includes a data analysis plan that links to the objective defined in the SOP. For example, the agency must explain the method by which it intends to evaluate the success of the pilot project on an interim basis and at the completion of the pilot project, including identification of well-defined, clear, and measurable objectives and their connection to program objectives. As of early 2017, EEOC has received nine applications for pilot programs. In the example provided to GAO, the requesting agency successfully submitted an application that identified metrics it would use to measure the objectives to be achieved, including reducing complaint processing time and improved accountability. The OFO did ask the requesting agency to clarify its measurable objectives, which the agency provided, and OFO accepted. We conclude that the SOP for pilot projects and the implementation of those procedures provide sufficient attention to an evaluation plan that will yield sound results.

    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

  2. Status: Closed - Implemented

    Comments: According to EEOC officials, the agency first proposed changes to its regulations to allow for pilot projects in the Federal Register in late 2006. The final rule, which provided a mechanism for agencies to request a variance from regulations to conduct pilot projects, was issued in July 2012. EEOC released its Management Directive in August 2015, containing the revised regulations and clarifications, including more explicit information on time frames, as well as a list of elements to be included in pilot project requests. In the summer of 2016, EEOC's Office of Federal Operations (OFO) released its Standard Operating Procedures (SOP) with a checklist the OFO uses to evaluate applications. The SOP outlines the OFO's evaluation plans of agency reports including quarterly and annually monitoring of progress during the pilot project. According to EEOC, OFO reviews agency reports to determine whether the pilot is progressing pursuant to the pilot request as approved by the Commission. OFO provides a report to the Commission outlining the agency's progress for approval. For annual reviews, agency reports are due by November 15. Additionally, agencies are required to submit a final report at the end of the pilot project to include an analysis of the result of the pilot compared to the goals and objectives set forth in the proposal, as well as an evaluation of the data collected during the pilot. The SOP provides additional details for the quarterly, annual, and final reporting requirements, including how to compare progress to the goals and objectives set forth in the pilot request. We conclude that the SOP for pilot projects and the implementation of those procedures provide sufficient attention to an evaluation plan that will yield sound results.

    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

 

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