2011 PAR: Performance Results

 

Image

 

Performance Results

 

Results Achieved in FY 2011 Under Strategic Plan Performance Measures

Overview of Strategic Plan and Performance Measures

This Performance and Accountability Report is based on the EEOC's current modified Strategic Plan for FY 2007 through FY 2012. The agency's current Strategic Plan was initially published on October 1, 2006. However, after extensive reviews of the performance structure and measures were conducted in FYs 2007 and 2008, interim modifications resulted in this version, which was approved by the Commission on July 28, 2008. A description of the specific modifications is available on the agency's website at www.eeoc.gov.

With the enactment of the Government Performance and Results Act Modernization Act of 2010 (GPRAMA) on January 4, 2011, the Commission embarked on the development of a new Strategic Plan to be effective in FY 2012. However, the results reported in this PAR are linked to the performance measures contained in the agency's current modified Strategic Plan, which were in effect during FY 2011.

In the current Plan, the agency adopted one Strategic Objective: Justice, Opportunity and Inclusive Workplaces. Nine performance measures are linked to this one Strategic Objective. The EEOC either achieved or exceeded its targets for five out of nine of its measures, but did not meet the targets for three other measures in FY 2011. One final measure has been pending completion of the Commission's strategic planning assessment. These performance measures, and the results achieved by EEOC in FY 2011, are analyzed in greater detail below.

 

 

Results Achieved Under Specific Performance Measures

Long-Term/Annual Measure 1

Long-Term/Annual Measure 1 focuses on tracking the improvements in the workplace directly resulting from EEOC's enforcement programs. It was developed to focus on all enforcement services provided to the public that result in workplace benefits, and is based on the number of employees in the employer's workplace impacted by a benefit. Specifically, these results include benefits, changes in workplace policies, practices or procedures, from administrative resolutions (i.e., mediation), litigation resolutions, and federal sector hearings and appeals resolutions. The Commission believes that securing changes in employment policies, practices, and procedures through enforcement programs has a positive impact beyond the immediate victims of discrimination to all individuals in the affected workplace. As a result of these targeted efforts, the agency anticipates making continued increases over time in the number of individuals benefitting from enforcement activities.

The FY 2011 annual target for this measure was to increase the number of individuals benefiting from improvements to organizations' policies, practices, and procedures by 15.6 percent over the FY 2007 baseline. The result for FY 2011 was 230.3 percent above the baseline value, or 5.4 million individuals benefiting from workplace improvements obtained through all of EEOC's enforcement programs, substantially above the annual target established for FY 2011.

The Commission is reevaluating this performance measure and the associated targets established for FY 2012 in conjunction with its Strategic Plan development process.

Efficiency Measure

Approximately 74 percent of the agency's budget is dedicated to compensation and benefits. Linking the external impact of EEOC's enforcement programs to the Full-Time Equivalent (FTE) number of positions is thus a measure of agency efficiency. The Commission also believes that the correlation to FTE levels is appropriate because it recognizes that the EEOC's employees contribute directly to positive change in the workplace and that staff levels are susceptible to change.

In FY 2011, the agency had 2,505 FTE positions. Over 5.4 million individuals benefited from EEOC's enforcement programs because of improvements to policies, practices, or procedures in their workplaces. Therefore, 2,144 individuals benefited for every FTE. This was a significant increase of 184.5 percent over the FY 2007 baseline, compared to the 7.4 percent increase targeted for FY 2011.

The Commission will reevaluate this performance measure and the associated targets for FY 2012 in conjunction with its Strategic Plan development process.

Long-Term Measure 2

* N/A Not available. The Commission is evaluating the data collection requirements associated with this measure as a part of its overall strategic planning assessment.

If the public is aware of EEOC's enforcement activities and believes that the agency has handled discrimination complaints effectively, members of the public will be more likely to rely on the Commission to investigate, mediate, litigate, adjudicate, and/or otherwise resolve allegations of discrimination. By extension, if the agency has a reputation for fair and responsible enforcement of the federal employment discrimination laws, then employers, attorneys, and other members of the public, will be more likely to defer to EEOC's assessment of discrimination complaints and commit to voluntary compliance through mediation, settlement, or conciliation.

To measure the public's confidence in EEOC's enforcement of federal equal employment opportunity laws, the agency engaged a private organization to conduct a survey in FY 2007 of a representative sample of individuals nationwide. The follow-up survey is pending the Commission's strategic planning assessment, which is currently underway.

As with Long-Term Measure 1 and the Efficiency Measure, the Commission will reevaluate the utility of maintaining Long-Term Measure 2 as part of its overall strategic planning review process.

EEOC has identified six Annual Measures under Long-Term Measure 2 that contribute to the public's confidence in the agency.

Annual Measures 2.1, 2.2, 2.3: Processing Charges, Hearings, and Appeals.

Annual Measures 2.1, 2.2, and 2.3 focus on the time it takes for EEOC to resolve private sector charges, federal sector hearing requests, and federal sector appeals, respectively.

Under Annual Measure 2.1, EEOC is to resolve 54 percent of its private sector charges within 180 days by FY 2012. To move the agency toward that final goal, the target under Annual Measure 2.1 for FY 2011 requires the agency to resolve 51 percent of private sector charges within 180 days. In FY 2011, the Commission processed 40.7 percent of charges in 180 days or less, which was considerably short of the intended target. The EEOC's inability to meet this target was due to a large pending inventory, coupled with an increasing number of charge receipts, and the need for additional front-line staff. For the long-term, the agency believes that a multi-year approach – including technology and possible changes to internal procedures - to reducing the pending inventory will yield improved performance on resolving charges in 180 days or less. The agency will continue its efforts to achieve target levels for timely service and to improve the quality of investigations while handling the charge inventory. The EEOC's plans to address the pending inventory, concurrent with a reduction in the time it takes to process private sector charges, are described in greater detail in subsequent sections of this PAR.

Under Annual Measure 2.2, the EEOC is to resolve 54 percent of its federal sector hearings within 180 days by FY 2012. To reach this final goal, the target under Annual Measure 2.2 for FY 2011 requires the agency to resolve 53 percent of federal sector hearings within 180 days. In FY 2011, the Commission processed 34.3 percent of federal sector hearings in 180 days or less. Although the targets and final goal reflect the Commission's commitment to continue the timely handling of federal sector hearings, the agency's reported results remain significantly below the projected targets. Over time, the EEOC's efforts to meet this goal have become more difficult because of increasing workloads and a greater emphasis on enhancing the quality of hearings. The Commission's efforts are further impacted by the departure of a number of Administrative Judges (AJs) who accepted Administrative Law Judge positions at other agencies, which prompted the reassignment of their complaints, creating larger caseloads and further delays in complaint processing.

There are, however, a number of technological enhancements that have been piloted and/or launched by the Hearings Program to improve operational efficiency. For example, HotDocs, should streamline the decision-writing phase of the Hearings process for the long-term and produce gains in the processing time for complaints. Using all available resources, the Commission will reinforce its efforts to achieve the projected annual targets.

Under Annual Measure 2.3, EEOC is to resolve 70 percent of its federal sector appeals within 180 days or less by FY 2012. To reach the FY 2012 goal requires the agency to resolve 68 percent of federal sector appeals within 180 days in FY 2011. The EEOC fell considerably short of this target by resolving only 54.4 percent of federal sector appeals within 180 days or less. The Commission, as it moves toward the final goal of 70 percent in FY 2012, has renewed its efforts to reduce the appeals inventory while also focusing on the resolution of aged appeals.

Annual Measure 2.4: Quality of Private Sector Investigations

Annual Measure 2.4 ensures that investigative files meet quality standards. A large proportion of sampled investigative files are reviewed to determine whether they meet two critical quality criteria: 1) the appropriate charge categorization and file documentation support the actions taken; and 2) the resolution of the charge is supported. This measure is intended to ensure that completing work comes at the expense of performing the work well. The annual targets for this measure have increased since the baseline was established in FY 2005 and the agency has exceeded these targets each year. In FY 2011, 95.6 percent of investigative files met the requisite quality standards, exceeding the target established for FY 2011 of 92 percent.

Annual Measure 2.5: Confidence in Private Sector Mediation Program

Annual Measure 2.5 focuses on EEOC's mediation/Alternative Dispute Resolution (ADR) program. The Commission recognizes that the public's confidence in its mediation program has a significant impact on the public's perception of the agency as a whole. Results for this measure were obtained by surveying participants in EEOC's mediation program and tabulating the responses relating to the confidence level they reported in using the program. Based on this methodology, the confidence level in this program is rated consistently high. The agency believes a high level of confidence helps to convince participants, particularly company representatives, of the value of ADR. In FY 2011, 96.9 percent of all participants reported that they would return to EEOC's mediation program in the future.

Annual Measure 2.6: Success in Litigation

Annual Measure 2.6 places a premium on maintaining a high level of successful resolutions in EEOC's litigation program. Successful resolutions include cases decided by favorable court order and those concluded through a consent decree or a settlement agreement in litigation. Achieving success on this measure ensures that the Commission has continued to exercise its prosecutorial discretion responsibly and has litigated cases skillfully. Based on the results of a three-year weighted average (FY 2009 to FY 2011) EEOC's litigation success rate is 90 percent.

Related Program Results and Activities

SERVING THE PUBLIC MORE EFFICIENTLY

Significant Progress in Managing Charge Inventory

In FY 2011, the EEOC produced historic levels in its year-end results. Most notably, the pending inventory of private sector charges was reduced by more than 8,000 charges over the FY 2010 level, bringing the level to 78,136--the first reduction in inventory since FY 2002. These results were achieved despite having received a record number of receipts--nearly 100,000 charges. A total of 112,499 charges were resolved – an increase over the 104,999 charges resolved in FY 2010.

Over the past decade, the EEOC's inventory has risen significantly, with annual increases ranging from 12 - 38 percent between FY 2004 and FY 2009. While the inventory growth was significantly arrested in FY 2010, the attention to bringing down the agency's inventory was a major focus for FY 2011, bolstered by the increased productivity of the front-line staff due to hires in FY 2009 and FY 2010. It is notable that the achievement of the 8,202 reduction in the pending charge inventory, which is nearly a 10 percent reduction in inventory, occurred even with a hiring freeze that has been in place since January 2011. The continued emphasis on a comprehensive approach to charge management, coupled with additional staff added in FY 2009 and FY 2010, has yielded these significant results.

 

Image

In addition, FY 2011 saw the launch of two other projects designed to leverage technology for enhancements to customer service. As part of the President's Open Government initiative, the agency is implementing a charge processing milestone project to provide parties with an on-line tool for determining the status of charges. Additionally, the agency, through an intake technology streamlining plan, is working to create a comprehensive web interface that will aid both investigators and prospective charging parties, as well as improve the process from the first public contact with the agency through the formalization of a charge. Finally, the EEOC updated the EEOC Assessment System (EAS), which provides the public with an online tool to answer their questions and make an initial assessment on whether the EEOC is the appropriate agency to assist them in protecting their rights under the federal discrimination laws. The EAS is available on our website at https://egov.eeoc.gov/eas/

Mediation Program is a Win for both Employees and Employers

The EEOC's mediation program has continued to be a very successful part of our enforcement operations. In FY 2011, the EEOC's private sector national mediation program secured the highest number of resolutions in the history of the program, with a total of 9,831 resolutions, 5 percent more than the 9,362 resolutions reported in FY 2010. The EEOC obtained more than $170 million in monetary benefits for complainants through mediation resolutions, which was also a record level and $29 million more than last year's record of $141 million.

Participants almost uniformly view the mediation program favorably, with 96.9 percent reporting confidence in the program this year. The agency continues to focus efforts on increasing the participation of employers. To that end, the agency encourages the employer community to enter into Universal Agreements to Mediate (UAMs). These agreements reflect employers' commitment to consider mediating charges. At the conclusion of FY 2011, the agency had secured a cumulative multi-year total of 1,998 UAMs, which is an 11.8 percent increase from FY 2010.

Effectively Adjudicating Federal Sector Hearings and Appeals

Unlike its responsibilities in the private sector, the Commission does not process complaints of discrimination for federal employees. In the federal sector, individuals file complaints with their own federal agencies and those agencies are required to conduct an appropriate investigation of the claims raised in the complaints. Complainants can then request a hearing before an EEOC administrative judge (AJ) or file an appeal with EEOC's Office of Federal Operations.

In FY 2011, the EEOC secured more than $58 million in relief for parties who requested hearings. There were a total of 8,113 requests for hearings, more than the 7,707 received in FY 2010. Additionally, the Commission's hearings program resolved a total of 7,672 complaints.

TheCommission also adjudicates appeals of federal agency actions on discrimination complaints, and ensures agency compliance with decisions issued on those appeals. During FY 2011, the EEOC received 5,176 appeals of final agency actions in the federal sector, 13.8 percent more than the 4,545 such appeals received in FY 2010. This represented the largest percentage increase in receipts in more than 15 years. In FY 2011, the EEOC applied a more balanced approach to the resolution of the newest and oldest appeals. The agency resolved 4,510 appeals, including 54.36 percent of them within 180 days of their receipt. In addition, the Commission resolved 76.34 percent of appeals that were already, or would become 500 or more days old by the end of the fiscal year. This resulted in a 20.6 percent reduction in the age of the open inventory, and a 30.1 percent reduction in the number of 500+ day-old appeals still pending. The agency achieved these results by leveraging technology and successfully managing the appellate inventory.

During FY 2011, the EEOC continued its focus on expanding the use of technology to make the federal hearings and appeals process faster and more effective. This focus on technology includes the on-going development of a web-based filing and electronic file exchange system for hearings and appeals, and the expanded use of HotDocs technology for AJs.

The EEOC File Exchange (EFX) system is designed to allow federal agencies and federal complainants the ability to securely submit electronic reports of investigation, complaint files, and other documents to the EEOC in support of the federal hearings and appellate processes. The system is currently being piloted in 11 EEOC field office hearings units, the Office of Federal Operations, and several agencies including the US Postal Service, Department of Veteran's Affairs, Department of Homeland Security, Department of the Treasury, Department of the Navy, Department of the Air Force, and the Defense Logistics Agency. Upon conclusion of the pilot period, the system is slated to expand to all EEOC hearings units and become available to all federal agencies, complainants, and their representatives.

ENFORCING THE LAW MORE EFFECTIVELY

Historic Monetary Recovery through Administrative Enforcement

In FY 2011, the EEOC secured more than $364.6 million in monetary benefits through its private sector administrative enforcement activities, the highest level of monetary relief ever obtained by the Commission through the administrative process. This is $45 million more than was recovered in FY 2010. Overall, the agency secured both monetary and non-monetary benefits for more than 19,570 people through administrative enforcement activities – mediation, settlements, conciliations and withdrawals with benefits.

Challenging Discrimination in Federal Court

In FY 2011, the EEOC field legal units filed 261 merits lawsuits – an increase of 11 over FY 2010 - including 177 individual suits, 61 multiple-victim suits (with fewer than 20 victims) and 23 systemic suits. ("Merits" lawsuits include direct suits and interventions alleging violations of the substantive provisions of the statutes enforced by the Commission and suits to enforce administrative settlements.) Of these new filings, 162 contained Title VII claims, 80 contained Americans with Disability Act (ADA) claims, 26 contained Age Discrimination in Employment Act (ADEA) claims, and 2 contained Equal Pay Act (EPA) claims. (The total number of merits lawsuits is less than the sum of the suits based on each individual statute as some suits are filed under multiple statutes.) The Commission also filed 39 subpoena enforcement and other actions.

Legal staff resolved 277 merits lawsuits – a decrease of 8 from FY 2010 - for a total monetary recovery of $90.9 million. Of these resolutions, 215 contained Title VII claims, 42 contained ADA claims, 26 contained ADEA and two contained EPA claims. The Commission also resolved 36 subpoena enforcement and other actions during the fiscal year. In terms of dollars recovered in direct, indirect and intervention lawsuits by statute, EEOC recovered $54.3 million in Title VII resolutions, $8.4 million in ADEA resolutions, $27.1 million in ADA resolutions, and $1.1 million in resolutions involving more than one statute. At the end of FY 2011, the EEOC had 443 cases on its active docket, of which 116 (26 percent) involved multiple aggrieved parties (but fewer than 20) and 63 (14 percent) involved challenges to systemic discrimination.

Maximizing Impact Through Systemic Enforcement

As the nation's leading law enforcer of federal laws prohibiting employment discrimination the agency places a high priority on issues that impact large numbers of job seekers, and employees. The Commission therefore devoted resources to investigating and litigating cases of systemic discrimination as a top agency priority since these cases maximize efficiency and eradicate discriminatory policies and practices while obtaining relief for large numbers of individuals. More details about the Systemic Initiative can be found at http://www.eeoc.gov/eeoc/task_reports/systemic.cfm.

Systemic cases are highly complex. They require a large investment of resources, highly trained investigators and attorneys, and sophisticated expert analysis by statisticians, industrial psychologists, and labor market economists. The Commission has been devoting significant resources to strengthening its systemic-oriented skill set in EEOC staff. The agency has hired experts in the fields of statistics, industrial psychology and labor market economics who will partner with district offices to work on larger cases. The agency will continue to assess whether additional or different types of expertise would aid in building the systemic program.

The agency's focus on systemic discrimination begins with the identification of possible instances and the ensuing investigation. Oftentimes, systemic investigations resolve a number of individual charges that have been filed, and the resolution benefits the entire workplace so that individual charges do not need to be filed in the future.

At the end of FY 2011, the EEOC was working on 580 systemic investigations, involving more than 2,067 charges. This figure includes 47 Commission-initiated charges. In FY 2011, EEOC field offices completed work on 235 systemic investigations resulting in 35 settlements or conciliation agreements, recovering $9.6 million. In addition, cause findings were issued in 96 systemic investigations. Those that were not resolved in conciliation were referred to field legal divisions for consideration of litigation.

During the year, there was a particular focus on building systemic enforcement partnerships, both within the EEOC and with other federal agencies. A major success was the filing of a systemic lawsuit against Bass Pro Shops, the result of investigations by the Houston, Birmingham and Miami field offices. Another partnership focused on a pilot project of four EEOC district offices and the Department of Justice (DOJ) to establish effective interagency procedures needed for enforcement of Title VII in the public sector, where DOJ has statutory authority to litigate. The pilot resulted in DOJ visits to all four district offices, identification of numerous cases in investigation that are of interest to DOJ, and ongoing case development discussions between EEOC enforcement staff and DOJ legal staff. During a second project, EEOC shared systemic case information with the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) and subsequently met to discuss strategies and available information for further examination of specific employers.

When the agency makes a finding of systemic discrimination and efforts to secure voluntary compliance fail, it may choose to file suit to enforce the law. In FY 2011, the Commission filed 23 lawsuits with at least 20 known or expected class members. This comprises nine percent of all merits filings, and is the largest volume of systemic suit filings since tracking started in FY 2006. The Commission filed 20 such suits in FY 2010, 19 such suits in FY 2009, 17 in FY 2008, 14 in FY 2007 and 11 in FY 2006. Expressed differently, 63 cases on the active docket at the end of FY 2011 were systemic cases, accounting for 14 percent of all active merits suits. This is slightly higher than the volume of systemic cases in our active docket at the end of FY 2010. Based on the large volume of systemic charges currently in investigation, the quantity of systemic lawsuits and their representation on the total docket is expected to continue to steadily increase. This past year, the EEOC resolved 34 systemic cases, eight of which included at least 100 aggrieved individuals.

Below is a sampling of significant resolutions of systemic discrimination lawsuits in FY 2011:

EEOC v. Verizon Maryland, Inc., et al. – In this nationwide ADA suit, the EEOC alleged that Verizon unlawfully denied reasonable accommodations to hundreds of employees with disabilities, and disciplined or fired them pursuant to inflexible attendance policies that did not provide accommodation for disability-related absences. A three-year consent decree provided a $20 million fund to compensate approximately 800 victims, and represents the largest disability discrimination settlement in a single lawsuit in EEOC history. The decree also requires the company to revise its attendance plans and ADA policy to include reasonable accommodations for persons with disabilities.

EEOC v. Roadway Express, Inc. – In this series of cases filed in Illinois against a trucking firm, the EEOC alleged that the firm gave black employees at several Chicago-area facilities inferior work assignments and subjected them to harsher discipline and harassment based on their race, including multiple incidents of hangman's nooses and racist graffiti and cartoons. A consent decree provides $10 million to 259 victims and requires the development of new anti-harassment policies and specific recordkeeping and complaint reporting procedures. The decree also requires the firm to retain consultants to examine the company's discipline and work assignment procedures and recommend changes to prevent racial disparities.

EEOC v. International Profit Association-- In a widespread sexual harassment case, the EEOC alleged that a telemarketing firm in Illinois systemically subjected female employees to sexual assaults and propositions, inappropriate touching, and crude sexual comments. The court agreed with the EEOC that the firm's conduct constituted a pattern or practice of discrimination, meaning that the harassment was so pervasive that it was the firm's standard operating procedure. A consent decree provides $8 million to 82 victims.

EEOC v. Scrub Inc.-- In a major hiring discrimination case, the EEOC alleged that a janitorial services company at Chicago's O'Hare Airport refused to hire black applicants based on their race. A consent decree provides $3 million to 539 victims, mandates the hiring of certain claimants who still want jobs, and requires the firm to use its best efforts to reach certain hiring goals.

EEOC v. 3M Company– In this nationwide age discrimination lawsuit, the EEOC charged that 3M unlawfully laid off hundreds of employees over the age of 45 during a series of reductions in force. The EEOC also asserted that older employees were denied leadership training and laid off to make way for younger leaders. A three-year consent decree provides $3 million to approximately 290 former employees. In addition, 3M will implement a review process for termination decisions and training on how to prevent age bias. The company will also post openings for positions it had not advertised previously, to enable older employees to apply.

EEOC v. AKAL Security-- In a nationwide pregnancy discrimination case filed in Kansas, the EEOC alleged that a security services firm engaged in a pattern or practice of forcing its pregnant employees, working as contract security guards on U.S. Army bases, to take leave and then discharging them because of pregnancy. A consent decree provides $1.6 million to 26 female security guards.

EEOC v. Denny's Inc.– In this nationwide ADA suit filed in Maryland, the Commission challenged the restaurant's maintenance of a maximum medical leave policy that automatically denied additional medical leave beyond a pre-determined limit. A consent decree provides $1.3 million to 34 victims and provides substantial programmatic relief, including changes to the medical leave policy, a corporate-level oversight and auditing process for leave decisions, and reporting to the EEOC.

To facilitate and enhance communication and collaboration on systemic efforts, EEOC provided systemic coordinators, lead investigators, and attorneys with a dedicated portal for shared access to national case information, systemic libraries, and systemic guidance documentation within our Document Management System. In addition, EEOC expanded usage of our CaseWorks system, which provides a central shared source of litigation support tools that facilitate the collection and review of electronic discovery and enable collaboration in the development of cases for litigation.

Finally, during FY 2011, the EEOC deployed a new component of its Integrated Mission System (IMS), the Litigation Appeals application, which tracks the agency's litigation in the appellate courts. With the addition of this application, EEOC can manage the Commission's entire enforcement activity from the initial inquiry through investigation, trial litigation, and now appellate litigation. This application records the significant events in the appellate courts and provides EEOC a more efficient way to manage litigation and monitor attorney workload and productivity.

LEADERSHIP IN FEDERAL CIVIL RIGHTS ENFORCEMENT

Leveraging Inter-Agency Relationships for Strategic Enforcement

The work of the Commission is made more efficient with interagency coordination and it has established an active and ongoing relationship with other agencies as well as the White House. The efforts allow a greater impact on many communities and issues. In FY 2011 this included the Asian American and Pacific Islander (AAPI) community (https://www.whitehouse.gov/presidential-actions/executive-order-economic-empowerment-asian-americans-pacific-islanders/ ), the National HIV/AIDS Strategy (https://obamawhitehouse.archives.gov/administration/eop/onap/nhas ), the Federal Interagency Reentry Councilwww.eeoc.gov/eeoc/interagency/reentry_council.cfm ) and theNational Equal Pay Enforcement Task Force .

 For example, in conjunction with the National Equal Pay Enforcement Task Force, the EEOC played a leading role in developing an integrated, interagency civil rights agenda to address compensation discrimination in employment. The agency's work has centered on developing the infrastructure for effective interagency collaboration, conducting effective outreach and education to employers and employees, training Commission enforcement personnel, and engaging in robust enforcement efforts on compensation discrimination – all with an eye to maximizing impact through the sharing of resources, information and ideas.

On February 8, 2011, the EEOC hosted the first ever forum in which the EEOC, DOJ Civil Rights Division (DOJ), and OFCCP employees met simultaneously with the leaders of each of the three agencies. Since that time, the agencies have engaged in pilot projects, joint training and cross-training efforts, and joint outreach on equal pay. Through EEOC's extensive new compensation discrimination training program, the agency trained a total of 520 people, including 395 EEOC personnel, 85 OFCCP personnel, 28 Department of Labor Wage and Hour Division (WHD) personnel, and 12 personnel from state and local Fair Employment Practices Agency (FEPA) partners in FY 2011. The EEOC also partnered with the Department of Labor Women's Bureau, OFCCP, and WHD to conduct over two dozen outreach events about equal pay across the country, reaching over 2000 members of the public. The EEOC's Training Institute also trained approximately 950 people on equal pay laws, helping ensure that employers, managers, and human resource personnel know how to comply with our nation's equal pay laws.

The EEOC also worked closely with OPM to implement the Equal Pay Enforcement Task Force's recommendations to ensure that the federal government is a model employer. In August, EEOC and OPM released a joint memo to federal employees, Chief Human Capital Officers, and EEO Directors, pledging their commitment to enforcing the laws that require equal pay for equal work for federal employees. The agency also continues to work with GAO and OPM to better understand the reasons for the federal sector gender pay gap, and to develop strategies for eliminating that gap.

Providing Clarity through Regulations, Enforcement Guidance and Technical Assistance

Issuing regulations to implement new statutes is at the heart of the Commission's role of leading enforcement of federal anti-discrimination laws. Regulations represent the Commission's official interpretation of the statutes it enforces. In FY 2011, the Commission published final regulations interpreting two new federal EEO statutes to inform individuals and employers of their legal rights and responsibilities, aid EEOC employees in conducting investigations and litigation, and serve as references for the courts when resolving novel legal issues. In FY 2011, the agency issued the following:

Regulations under the Genetic Information Nondiscrimination Act of 2008 (GINA). The EEOC began enforcing Title II of GINA on November 21, 2009. GINA requires the Commission to issue implementing regulations.

The Commission issued its final rule implementing GINA's employment provisions on November 9, 2010. In this rule, the Commission explains what constitutes "genetic information," how GINA prohibits using genetic information in employment decisions, and the limited circumstances in which employers may acquire this information. The rule also details employers' obligation to keep genetic information confidential and explains when claims should be raised under Title I of GINA (covering health insurers and enforced by other federal agencies), instead of under Title II (the employment title).

To help the public better understand the final rule, the Commission also issued two technical assistance documents, Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008 and Questions and Answers for Small Businesses: EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008 . The documents provide practical information about the most important requirements of Title II of GINA and the EEOC's regulations and can be found on our website athttp://www.eeoc.gov/laws/regulations/index.cfm .

To further help employers implement GINA, EEOC issued an Notice of Proposed Rule Making on June 2, 2011, stating that employers covered by GINA have the same recordkeeping obligations under this new law as they already have under Title VII and the ADA.

Regulations under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).Congress passed the ADAAA in response to a series of Supreme Court decisions that interpreted the ADA's definition of "disability" very narrowly. With the ADAAA's passage, Congress also explicitly expressed its expectation that the EEOC would revise its regulations implementing Title I of the ADA in accordance with the ADAAA's much broader interpretation of "disability."

The Commission issued a final rule to implement the ADAAA on March 25, 2011. The final rule clarifies the broader meaning of "disability" that Congress adopted in the ADAAA. Like the statute, the final rule says that "major life activities" include "major bodily functions," such as those of the cardiovascular, endocrine and musculoskeletal systems. It also emphasizes that the term "substantially limits" should be construed broadly and without extensive analysis, allowing coverage for lesser limitations than previously permitted by the Supreme Court and the EEOC's 1991 ADA regulations. The rule says that impairments that are episodic or in remission, such as epilepsy or cancer, are disabilities if they would be substantially limiting when active. Moreover, the final rule says that the beneficial effects of mitigating measures like medication, a prosthetic limb, or a hearing aid must be disregarded when assessing whether the underlying impairment is substantially limiting. Finally, the rule incorporates and further explains the ADAAA's expanded definition of what it means to be "regarded as" an individual with a disability.

To help the public understand the final rule, the Commission issued a fact sheet and two technical assistance documents: Fact Sheet on the EEOC ' s Final Regulations Implementing the ADAAA , Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008 , and Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008 . More information about the ADAAA can be found on our website athttp://www.eeoc.gov/laws/regulations/index.cfm .

Providing Strong Leadership and Oversight for Federal Agencies

The EEOC provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program. The Commission assures federal agency and department compliance with EEOC federal sector regulations, provides technical assistance to federal agencies concerning EEO complaint adjudication, monitors and evaluates federal agencies' affirmative employment programs, and develops and distributes federal sector educational materials and conducts training for stakeholders.

EEOC's Management Directive 715 (MD-715) identifies "Essential Elements"
for structuring model EEO programs. Attaining a model EEO program provides an agency with the necessary foundation for achieving a discrimination-free work environment.

A discrimination-free work environment, characterized by an atmosphere of inclusion and free and open competition for employment opportunities, is the ultimate goal of MD-715 and the federal government. MD-715 provides a roadmap for creating effective EEO programs for all federal employees as required by Title VII and Section 501 of the Rehabilitation Act of 1973, which prohibits disability discrimination in the federal sector.

To assist agencies in reporting under MD-715, EEOC provides tools and assistance to agencies to help them analyze their work forces and uncover barriers to equal employment opportunities. Once barriers are identified by agencies, Commission staff collaborate with them to develop creative strategies to eliminate or reduce the impact of identified obstacles. Further, the EEOC works with agencies to promote workplace policies and practices that foster an inclusive work culture and prevent employment discrimination. This effort includes working with federal agencies to adopt and successfully implement the attributes of the EEOC's Model EEO Program.

In FY 2011, EEOC piloted the Federal Information Resource EEO System (FIRES) database through the OMB Max Portal. The FIRES database is a multi-year process of capturing and storing the data used by EEOC for analyzing the workforce composition of federal agencies and trends within the federal workforce. EEOC completed the first step of the FIRES database by developing a web-based system for collecting MD-715 submissions. Using a web-based data collection system will benefit EEOC by reducing costs, increasing data accuracy, and improving the analysis of data.

The six Essential Elements for maintaining model Title VII and Rehabilitation Act programs are: (1) demonstrated commitment from agency leadership; (2) integration of EEO into the agency's strategic mission; (3) management and program accountability; (4) proactive prevention of unlawful discrimination; (5) efficiency; and (6) responsiveness and legal compliance.

Federal agencies' annual submission of MD-715 reports serves as a key component by which EEOC ascertains agencies' progress in creating model EEO programs. Moreover, it provides a mechanism by which the Commission can provide meaningful feedback to agencies on either a single, or multiple-year comprehensive, trend analysis of their submissions.

In FY 2011, the Commission provided 15 three-year trend analysis letters to reporting agencies under MD-715. In addition, staff provided in-person technical assistance to another 118 federal agencies. In their role as consultants, EEOC staff provided guidance and recommendations related to the agencies' organizational structures, EEO policies, procedures, and practices, workforce policy, and inclusion.

EXTENDING THE REACH OF THE AGENCY

Agency Outreach Continues to Reach Diverse Audiences

The Commission's outreach, education and technical assistance efforts focused on increasing voluntary compliance with federal equal employment laws and on improving employee and employer awareness of rights and responsibilities under federal employment discrimination laws.

The agency's no-cost outreach programs reached 511,951 persons in FY 2011, a significant increase over approximately 250,000 in FY 2010.. EEOC offices participated in 6,264 no-cost educational, training, and outreach events. Additionally, in FY 2010, the Training Institute trained over 26,400 individuals at more than 480 events, including 320 field Customer Specific Training events with 16,000 attendees.

Specific outreach events included 3,028 oral presentations, 388 training sessions and 508 stakeholder input meetings. These three major types of educational events reached over 229,000 people. Offices represented the Commission at 1,039 public events that reached 137,574 people. These events included information meetings with community organizations and professional associations. Informational materials were distributed to 91,453 people through participation in job fairs, ethnic and cultural festivals, expositions and conventions. Commission employees also made 583 media presentations, including newspaper, radio and TV interviews, talk shows, and press conferences that provided substantive equal employment opportunity (EEO) information to millions of stakeholders.

Small Business Outreach. The Commission worked collaboratively with the small business community to prevent employment discrimination and promote voluntary compliance. EEOC offices conducted 512 no-cost outreach events directed toward small businesses in FY 2011, reaching over 41,754 small business representatives. The most popular topics for small business audiences were an overview of the laws enforced by EEOC, charge processing procedures, sexual harassment, Title VII and the ADA.

ADAAA and GINA Outreach. Civil rights laws are dynamic and constantly evolving. With new legislation such as the ADA Amendments Act and GINA and the subsequent regulations issued by the Commission in FY 2011, the EEOC conducted outreach to provide comprehensive training to ensure that employers were kept abreast of the status of the laws in order to prevent unconscious violations. The ADAAA was the main topic at 107 no-cost events in FY 2011 reaching over 7,200 people; GINA was the main topic at 243 no-cost events that reached almost 16,000 people.

Outreach to Under Served Geographic Areas and Communities. To extend the reach of the agency, it is important that the Commission develop outreach and partnership opportunities outside of the usual areas. In FY 2011, the Commission conducted 1,542 events in areas beyond the usual reach of our office locations, reaching over 134,011 individuals. Offices traveled to states and communities where no EEOC office is located, partnering with local community organizations to conduct town hall meetings and training sessions beyond the normal hours of operation. The Commission also provided over 281 off-site intake and counseling services in neighborhoods where persons with limited English proficiency may be less likely to come to Commission offices. Targeted outreach during FY 2011 included:

Providing Employers and Employees with Education and Technical Assistance

The EEOC Training Institute is managed under a separate statutory authority that enables the Commission to offer in-depth and specialized programs on a fee basis, supplementing the free general informational and outreach activities that are an on-going aspect of the agency's mission. The Training Institute offers diverse, high quality, reasonably priced EEO expertise and training products to private sector employers, state and local government personnel, and employees of federal agencies. In FY 2011, the Institute trained over 26,400 individuals at more than 480 events, compared to 20,000 individuals at 450 events in FY 2010, generating about $4.4 million in revenue. This enabled the Fund to remain self-sustaining for another year, and allowed for the reimbursement of $2.6 million to the agency for indirect costs associated with the operations of the fund, including 100 percent of Training Institute staff and portions of field and headquarters staff performing dedicated activities for the Institute. The Institute offered the following products/service lines:

Technical Assistance Program Seminars (TAPS). The one- and two-day TAP Seminars offered by the Training Institute are responsive to employers' information and training needs and allow EEOC to educate employers and employees about how to identify, prevent and eliminate workplace discrimination. In FY 2011, 37 TAPS were conducted throughout the country with nearly 5,600 participants. Offices did well attracting customers; attendance averaged about 155 participants per event, which was an increase from the FY 2010 average of 147.

National Federal Sector Conference .An annual national federal sector conference, the Examining Conflicts in Employment Laws (EXCEL) Conference, has become a widely anticipated and highly acclaimed event for federal EEO managers, attorneys, union officials, and other EEO professionals. This year's conference marked the 14^th anniversary of this event and attracted more than 600 attendees. The conference included five plenary sessions and fifty workshops, along with three separate training tracks each day covering Basic Mediation, Advanced Mediation and Hearings Preparation.

Customer Specific Training. The Customer Specific Training (CST) program trains employees, managers, supervisors and human resource professionals from large, mid-size and small employers on their EEO responsibilities and how to prevent and correct workplace discrimination. Standardized courses are available, or the Institute can design customized courses to be delivered at employers' worksites. In FY 2011, the Training Institute held 320 field CST events that reached approximately 16,000 attendees.

Webinars. In an effort to bridge the Institute's training offerings with technology developments, the Institute once again offered webinars as part of its product line. During FY 2011, the Institute presented six webinars covering Harassment, GINA, ADAAA regulations and Social Networking. These sessions reached over 1,100 sites.

Federal Courses and CSTs. In addition to the EXCEL conference, 42 courses covering skills training for federal investigators, mediators and counselors were presented and funded through the Revolving Fund. There were more than 1,000 attendees this year for the federal courses offered around the country and in Washington, DC. There were also about 62 federal CSTs conducted during FY 2011, reaching almost 1,700 attendees.

IMPROVED LABOR MANAGEMENT RELATIONS

Pursuant to the President's Executive Order (EO) 13522: "Creating Labor-Management Forums to Improve Delivery of Government Services," the EEOC established a National Joint Labor Management Council (JLMC) in addition to District Joint Labor Management Councils in each of its 15 Districts, one in the Washington Field Office, and one in Headquarters. The National JLMC established metrics to measure goal-related activities associated with implementing the EO. Each metric included an established baseline by which to measure successes. These three principle metrics were "Improve Mission and Service Delivery," "Employee Satisfaction and Engagement" and "Improved Labor-Management Relation."

The agency recently reported mixed results for measures chosen to demonstrate the progress of the Labor-Management forums. For example, the baseline for the measure to demonstrate "improved mission and service and delivery" was established using the positive response rate to question number 11 in the FY 2010 OPM Employee Viewpoint Survey, "My talents are used well in the workplace." The baseline in FY 2010 was 55 percent and the FY 2011 result increase to 58 percent.

The EEOCs results addressing employee satisfaction and engagement in various programs through the Labor-Management Forums fared similarly. For example, 62 percent of employees appear to be more satisfied and engaged with the agency's telework program in FY 2011 compared with 60 percent in FY 2010. Also, at least 48 percent of the employees at EEOC telework compared to 20 percent government-wide. Labor relations have also improved as it relates to the filing number of unfair labor practices (ULP's) by the Union against the Agency. Specifically, in FY 2010, the union filed 47 ULP's against the Agency and in FY 2011 that number dropped to 16.

Improving Federal Employees' Viewpoint Survey Results

The Office of Personnel Management recognized EEOC via the 2011 Federal Employee Viewpoint Survey as one of the Most Improved Agencies in creating better working environments for their employees. EEOC was recognized for greatest improvement in the Leadership and Knowledge Management Index. This index indicates the extent to which employees hold their leadership in high regard, both overall and on specific facets of leadership. In addition, EEOC was recognized for greatest improvement in the Results-Oriented Performance Culture Index. The Results-Oriented Performance Culture Index indicates the extent to which employees believe their organizational culture promotes improvement in processes, products and services, and organizational outcomes.

Implementing Hiring and Hiring Reform

The agency anticipated using its automatic backfill process in FY 2011. Unfortunately, it was necessary to impose a hiring freeze effective January 3, 2011, due to budget constraints. As a result, only 93 employees were hired in FY 2011, nearly all in the first and second quarters. By comparison, 383 employees were hired in FY 2010.

Pursuant to initiatives from the Office of Personnel Management and the Office of Management and Budget, EEOC's Office of Human Resources worked with agency hiring managers and senior officials to develop a new hiring reform action plan designed to improve the agency's hiring process. The goal continues to be hiring new employees within 80 calendar days. However, during the second quarter of FY 2011 only 8 percent of hires met that goal, down from the 21 percent achieved in the first quarter of the fiscal year. Going forward, the improved tracking system will allow EEOC to quickly identify barriers, such as delays in announcing positions due to inaccurate or incomplete crediting plans; delays in interviewing and selecting, extensions of time to select from a certificate, and allow for adjustments to ensure continued work towards the goal.

Program Evaluations

Program evaluation is an important component of an agency's effort to assure that a program is operating as intended and achieving results. A program evaluation is a thorough examination of program design or operational effectiveness that uses a rigorous methodology and statistical and analytical tools. It also uses expertise within and outside the program under review to enhance the analytical perspectives and to add credence to the evaluation and recommendations.

Evaluation of the Priority Charge Handling Procedures (PCHP) Report — Recommendations

In December 2010, duringthe first quarter of FY 2011, an independent contractor issued its "Evaluation of the Priority Charge Handling Procedures Report," evaluating EEOC's priority charge handling process (PCHP). The report contained four major findings and several recommendations to strengthen the priority charge handling process within EEOC, nationwide. The report noted that: 1) current implementation of PCHP is not consistent with the original design of the process approved by the Commission in 1995, or in the subsequent 1997 joint Task Force's Report (i.e., the agency "has not uniformly embraced and fully implemented key components of the PCHP Policy;" 2) the data kept on PCHP does not lend itself to drawing either positive or adverse trends in the enforcement of discrimination laws; 3) implementing the charge management system (and PCHP) process more broadly and consistently will require a "focused and extensive commitment by management in headquarters and the field; and finally, 4) the EEOC could benefit from not only examining shared best practices within headquarters and the field offices, but should proactively initiate processes "to see how various offices implement them…and evaluate their usefulness on improving charge-processing results." The recommendations are currently under review.

The following schedule of program evaluations will be reviewed during the Commission's Strategic Plan review process.

 

VERIFICATION AND VALIDATION OF DATA

The Commission's private sector, federal sector, and litigation programs require accurate enforcement data, as well as reliable financial and human resources information, to assess EEOC operations and performance results and make good management decisions. The agency will continue efforts to ensure the accuracy of its program information and any analysis of the information.

The agency continually reviews the information it collects in various databases for accuracy by using software editing programs and program reviews of a sample of records during field office technical assistance visits. In addition, agency headquarters offices conduct analyses regularly to review the information collected in order to identify any anomalies that indicate erroneous entries requiring correction to collection procedures.

EEOC has implemented approaches to improve validity and reliability of the EEO-1—the form required of private employers with 100 or more employees. Recently, the agency expanded its mailing list based on the input from Dun and Bradstreet. The mailing list was carefully edited by EEOC staff to include only those people who were actually missed in the current list and met filing requirements. A security audit for the host facility was implemented to make certain that the data was secure and accessible. Greater use of the EEO-1 by field staff has resulted in an increased identification of non-filers that has enabled the agency to collect information more rapidly and accurately by eliminating the need to enter information multiple times before it can be reviewed and analyzed. For example, the agency implemented a secure, web-based system that enabled all federal agencies to electronically submit annual equal employment opportunity statistics (Form 462). This system continues to improve the quality and timeliness of the information EEOC receives.

Finally, the agency continues to improve the collection and validation of information for the Integrated Mission System (IMS), which consolidates the agency's mission data on charge intake, investigation, mediation, litigation, and outreach functions into a single shared information system. IMS includes many automated edit checks and rules to enhance data integrity.

Since several of the EEOC's performance measures require the use of data to assess our achievements, it is significant that the agency can now obtain those data much more quickly and with greater data accuracy.

The agency also implemented information quality guidelines and adopted internal procedures that strengthen the EEOC's ability to verify and validate the quality of data before it is released to the public. In addition, the agency's Office of Inspector General continues to review aspects of the status of the EEOC's data validity and verification procedures, information systems, and databases, and offers recommendations for improvements in its reports. The Commission uses the information and recommendations to continually improve the agency's systems and data.