What You Should Know: Myths and Facts about the Federal Sector EEO process

Background: Recent commentary and conjecture have taken aim at the federal sector equal employment opportunity (EEO) complaint process. Following are facts to aid in demystifying the "myths":

MYTH: Discrimination is found in less than 2 percent of EEO complaints.
FACT: Discrimination may occur in up to 33 percent of EEO cases.

The 2-3 percent figure cited for the rate of discrimination findings is a statistic that only tells part of the story.  The Equal Employment Opportunity Commission (EEOC) strongly encourages early resolution of cases both before and after a formal complaint is filed.  Of the 17,124 complaints closed in Fiscal Year (FY) 2010, 29 percent were resolved through settlements prior to a formal determination.  Many of these resolutions contained favorable outcomes for the complainant, including monetary and non-monetary benefits.  Additionally, in FY 2010, of 40,563 instances of pre-complaint counseling, 55 percent of potential complaints were resolved by settlement or withdrawal before a complaint was formally filed.

MYTH: Complaints are increasing because more employees are "harassed" at work.
FACT: Two-thirds of complaints filed contain no harassment allegation.

Harassment is not reported in a vacuum.  Rather, EEO complaints usually involve multiple bases and issues of discrimination.  In FY 2010, over 60 percent of complaints filed did NOT include any allegation of harassment.  Fostering diversity and inclusion in workplaces can help avoid harassment claims.  Some allegations are based on employee misperceptions and misunderstandings which manifest in formal complaints.  Specifically, gender, ethnic, racial and cultural differences can leave employees feeling isolated, ignored and abandoned, leading to claims of hostile work environments, whether real or perceived.

MYTH: Agencies devote too many resources to processing frivolous discrimination complaints.
FACT: Most complaints are not frivolous and EEO resources pay dividends.

Most EEO complaints are far from frivolous.  Employees usually file complaints as a painstaking last resort.  In fact, federal sector rules and regulations allow for dismissal of so-called frivolous complaints.  However, managers should know that publicly criticizing complainants or treating them with contempt is not just a bad idea; it may in fact violate the law.  Calling complainants "whiners" or "poor performers" may result in a claim of reprisal – which is already the number one basis of complaints.  Reprisal has a chilling effect on the EEO process, undermines the statutory rights of employees, and does a disservice to the spirit and intent of federal anti-discrimination laws. 

It is a fallacy to infer that federal agencies are flooded with EEO complaints.  The federal workforce is comprised of nearly three million employees, yet individuals who file EEO complaints are a minute fraction of that number.  Less than half of one percent of the federal workforce filed an EEO complaint in FY 2010.  Moreover, the EEO process, by encouraging early settlement of disputes, saves taxpayers' money by avoiding complaints or reaching early resolutions.

Discrimination takes a tremendous toll on the workforce through lost productivity, low morale and inefficient use of human capital resources.  Conversely, the creation and maintenance of a discrimination-free workplace provides immeasurable benefits that cannot be explained solely through complaint statistics.

MYTH: Agencies are hamstrung when complainants refuse to cooperate.
FACT: EEOC regulations allow for dismissal of such complaints.

In FY 2010, 30 percent of EEO complaint closures resulted in dismissals for a number of administrative reasons, including where the complainant refused to cooperate or communicate.  An August 2011 decision, Kobraei v. National Security Agency, affirmed the dismissal of an EEO complaint for undue delay when a complainant failed to cooperate.  According to the decision, "Where the complainant has engaged in delay or contumacious conduct…the Commission [EEOC] has allowed a complaint to be dismissed for failure to cooperate."  This case law is not new; it reflects similar decisions rendered over several decades. 

Agencies can avoid the EEO process altogether by working closely with the EEOC to ensure equality, diversity and inclusion for all employees.  Like a doctor treating a patient, proactive prevention is still the best medicine to ensure a healthy, discrimination-free workplace.