EEO Practitioners Identified Factors That Impede the Prompt, Fair, and Impartial Processing of EEO Complaints

When asked to identify factors that impeded the prompt, fair, and  impartial processing of EEO complaints at their agencies and describe  how those factors impeded the process, selected EEO practitioners  provided hundreds of responses. These factors and their  rankings are (1) lack of accountability on the part of some agency  management officials and EEO practitioners in carrying out their  responsibilities; (2) insufficient resources for some agency EEO offices  and EEOC to fulfill their responsibilities; (3) lack of independence  concerning the potential conflict of having agencies conduct their own  EEO complaint investigations and the undue influence of some agency  legal counsel and human resources officials on the EEO process;   (4) insufficient knowledge and skills by some agency officials,  complainants, and EEO practitioners to fulfill their responsibilities;   (5) lack of authority by some EEO officials to dismiss cases that have no  merit and lack of subpoena power by EEOC AJs; (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 in the process and that ADR  (e.g., conciliation, facilitation, or mediation) is available; and (8) lack of a  firm commitment by some agency management and EEO officials to the  EEO process. These stakeholders commented that  without the perception that the complaint process is fair, people may be  frustrated and choose to not participate in it. We agree that this concern is important  and believe it has been accounted for within the context of the discussion  on factors related to accountability; independence; and clarity in  regulation, guidance, and consistent EEOC decisions. EEO Practitioners and Other Stakeholders Proposed Solutions That They Believe Address the Identified Factors

EEO practitioners and other stakeholders provided potential solutions  that they believe address the factors they identified as well as information  on changes their agencies had made to the EEO complaint process. Further, several EEO  practitioners believe that agencies should adhere more clearly to existing  EEOC requirements on delineating the roles of the agency general  counsels in the EEO complaint process. Because of the concern that the practice of allowing an agency to  investigate a complaint against itself can represent either a clear conflict  of interest or the appearance of such conflict, practitioners cited filing  complaints directly with EEOC as a means of avoiding such conflicts. EEOC officials stated that having subpoena authority would further ensure  that AJs have access to all relevant evidence. Improving Equal Opportunity in the Federal Workforce

Through the use of several initiatives introduced in fiscal year 2008, EEOC  is seeking to help federal agencies achieve model EEO programs where  they can make employment decisions that are free from discrimination  and that remove barriers to free and open workplace competition. EEOC also  measured agencies’ use of ADR. Finally, in June 2008, EEOC announced a proposal that brought together  previous EEOC commissioners’ efforts. Among the changes contained in  the notice, are the following:    A requirement that agency EEO programs comply with EEOC  regulations, MDs (MD-110 and MD-715), and management bulletins  and that EEOC will review agency programs for compliance. The solutions that EEO  practitioners and others have offered to improve the quality and timeliness  of investigations may provide candidates for the pilot projects, allowing  EEOC to make data-driven decisions about changes to the federal EEO  complaint process. Appendix I: Objectives, Scope, and Methodology

As agreed with interested congressional committees, this report provided  the results of our analysis of (1) factors that practitioners identified that  they believe impede the prompt, fair, and impartial processing of federal  equal employment opportunity (EEO) complaints and (2) actions that  practitioners and other stakeholders think could be taken to address those  factors. We also contacted plaintiffs’ attorneys from the private sector. We did not assess the validity of the practitioners’ views of impediments or  solutions to the EEO complaint process or evaluate the effectiveness of  initiatives that agency EEO practitioners said their agencies had  implemented to improve their complaint processes. In addition, the practitioners’ views cannot be generalized to all  federal agencies and EEO practitioners for some or all of the factors  identified. The views expressed by the survey respondents do  not represent the views of GAO.
Why GAO Did This Study

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.

What GAO Found

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.